author: Ruffin, Judge.

text:
    A99A0274.
    WOODALL v. RIVERMONT APARTMENTS LIMITED PARTNERSHIP et al.
    (520 SE2d 741)
   Ruffin, Judge.

Reginald Woodall was shot in the leg during an armed robbery at Rivermont Apartments. Woodall sued Rivermont Apartments Limited Partnership, its general partner, Brown-Rivermont, Inc., and the property manager, AB Property Management, L.P., alleging that they negligently failed to keep the premises safe. The trial court partially granted defendants’ motion in limine to exclude evidence of prior crimes and suspicious activity at the apartment complex. We granted Woodall’s application for interlocutory review. For the reasons discussed below, we affirm the trial court’s ruling in part and reverse in part.

The admissibility of evidence, including a ruling on a motion in limine, is a matter resting within the sound discretion of the trial court. Accordingly, we will not disturb the exercise of that discretion absent evidence of its abuse. See Stewart v. State, 210 Ga. App. 474, 476 (6) (436 SE2d 679) (1993). However, in determining whether the trial court has abused its discretion, we must consider our Supreme Court’s admonition that

the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

(Citation omitted.) Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817) (1995). Moreover, “[t]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value; evidence of doubtful relevance or competency should be admitted and its weight left to the jury.” Johnson v. State, 236 Ga. App. 61, 65 (3) (b) (510 SE2d 918) (1999).

At about 8:00 p.m. on December 20, 1993, Woodall parked near the apartment complex’s mailbox area and walked over to get his mail. The mailboxes were located next to the tennis courts, which were bordered by large bushes. As Woodall returned to his car, a man with a gun emerged from the bushes and told Woodall to “give it up.” Woodall started to run toward his car, and the gunman shot him in the leg. The gunman demanded that Woodall give him his money and wallet, and Woodall did so. The gunman unsuccessfully attempted to steal Woodall’s car, but fled from the scene on foot after a police officer appeared.

Prior to trial, Woodall discovered evidence of twenty separate property crimes that had occurred at the apartment complex in the previous year, including eight burglaries of apartment units, nine instances where cars in the parking lot were either broken into or stolen, and three instances where mailboxes at the apartment complex were broken into. In addition to these property crimes, there were two other incidents involving encounters by a resident or security guard with suspicious individuals. In granting defendants’ motion in limine to exclude evidence of these incidents, the trial court examined each incident separately and concluded that each individual incident was not sufficiently similar to the attack on Woodall to render it admissible. The trial court also excluded certain internal reports of defendants referencing these property crimes. The court did not consider whether the volume of crime, alone or combined with other factors, affected the question of admissibility, but simply considered each prior incident separately. However, the court stated in its order that it had “misgivings that the jury will not have a fair and accurate picture of the condition of the Rivermont [Apartments] at the time of trial.” The court denied defendants’ request to exclude evidence relating to violent crimes occurring in the vicinity of the apartment complex.

1. In Sturbridge Partners, Ltd. v. Walker, 267 Ga. 785-786 (482 SE2d 339) (1997), the Supreme Court noted that

[t]he general rule regarding premises liability is that a landlord does not insure tenants’ safety against third-party criminal attacks, and that any liability from such attacks must be predicated on a breach of duty to “exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. A landlord’s duty to exercise ordinary care to protect tenants against third-party criminal attacks extends only to foreseeable criminal acts. The difficulty arises in determining which criminal acts are foreseeable. . . . [T]he incident causing the injury must be substantially similar in type to the previous criminal activities occurring on or near the premises so that a reasonable person would take ordinary precautions to protect his or her customers or tenants against the risk posed by that type of activity. In determining whether previous criminal acts are substantially similar to the occurrence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. What is required is that the prior incident be sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident. Further, the question of reasonable foreseeability of a criminal attack is generally for a jury’s determination rather than summary adjudication by the courts.

(Citations and punctuation omitted; emphasis in original.) Id. The Supreme Court in Sturbridge expressly rejected the proposition that “a landlord’s knowledge of prior criminal acts against property cannot establish the foreseeability of a brutal sex crime as a matter of law.” Id. at 786. Thus, the Court held that the landlord’s knowledge of two prior burglaries of unoccupied apartments created a triable issue of fact as to whether the landlord “should have reasonably anticipated the risk of personal harm to a tenant which might occur in the burglary of an occupied apartment.” Id. at 787. In so holding, the Court noted that “the very nature of burglary suggests that personal injury may occur during the unauthorized entry into the dwelling house of another.” Id. at 787, n. 1.

Eight months after its decision in Sturbridge, the Supreme Court again confronted the issue of whether crimes against property might make a risk of personal injury to a tenant foreseeable. In Doe v. Prudential-Bache/A. G. Spanos Realty Partners, L.P., 268 Ga. 604 (492 SE2d 865) (1997), a tenant was robbed and raped after parking her car underneath her apartment building. Before this incident, a number of property crimes had occurred in the parking garage, including thefts of bicycles, thefts from automobiles, and vandalism. The Supreme Court held that these prior property crimes did not create a factual issue regarding whether the landlord could reasonably foresee that a violent sexual assault might occur on the premises. Id. at 606. The Court distinguished its recent decision in Sturbridge, stating that

[flirst, the “very nature” of the thefts and acts of vandalism committed in this case do not “suggest that personal injury may occur.” Further, because the parking garage where the prior crimes occurred is a common area, used by all the tenants and their guests, there is only the potential for a tenant to confront a thief in an isolated situation, and, even if such an encounter occurs, there is always the possibility that the isolation could be brief. In contrast, a tenant encountering a burglar in the privacy of her apartment inevitably will be isolated with the intruder, and will have little chance of a third party interrupting the encounter. Finally, a tenant generally will have opportunities for escaping an isolated encounter with a thief in a common area, but will not have similar opportunities when encountering a burglar in her apartment.

(Footnote omitted.) Id.

Thus, although Sturbridge rejected the proposition that the occurrence of property crimes may never render the occurrence of violent crimes foreseeable, the Court in Doe appears to have restricted the applicability of Sturbridge. Doe appears to establish the following principles: (1) a crime against property will make an act of violent crime foreseeable if the “very nature” of the property crime “suggest [s] that personal injury may occur”; and (2) if an individual who encounters someone committing such a property crime has “opportunities for escaping” the encounter, then the occurrence of the property crime, in and of itself, may not render it foreseeable that a violent crime will occur.

In this case, it does not appear that any of the property crimes, standing alone, would raise an issue of foreseeability under the standards set forth in Sturbridge and Doe. The trial court clearly believed that these cases required it to analyze each prior crime independently to determine its similarity to the attack at issue in this case, without reference to other crimes at the complex or other evidence placing the crimes in context. However, although the court stated that it believed its ruling was mandated by Sturbridge and Doe, it stated that it “has misgivings that the jury will not have a fair and accurate picture of the condition of the Rivermont [Apartments] at the time of trial.”

Neither Sturbridge nor Doe specifically addresses whether evidence of a crime that, standing alone, would not raise an issue of foreseeability may be relevant when considered in light of other evidence. However, the Supreme Court has made it clear that the relevant question is whether the prior incidents are “sufficient to attract the landlord’s attention to the dangerous condition which resulted in the litigated incident.” Sturbridge, supra. In resolving that issue, the trial court is to “inquire into the location, nature and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question.” (Emphasis supplied.) Id. Thus, it does not appear that the Supreme Court intended to require a rigid, formalistic analysis of the factual similarity between various instances of criminal activity. So long as the occurrence of the prior crimes should “attract the landlord’s attention to the dangerous condition which resulted in the litigated incident,” the prior crimes are relevant to the issue of foreseeability. Id.

It is important to note that the essential question in a case of this kind is whether the defendant violated a duty to protect the plaintiff from an unreasonable risk of harm. As Justice Sears noted in her concurrence in Sun Trust Banks v. Killebrew, 266 Ga. 109, 110 (464 SE2d 207) (1995),

neither this Court nor the Court of Appeals has specifically held that knowledge of an unreasonable risk of criminal activity can only be created by the prior, actual occurrence of a crime. Instead, both this Court and the Court of Appeals have stated that knowledge of the unreasonable risk of criminal activity “may” be proven by prior similar incidents.

(Sears, J., concurring). In Lau’s Corp. v. Haskins, 261 Ga. 491, 493 (1) (405 SE2d 474) (1991), the Supreme Court held that an issue of fact regarding the proprietor’s duty was created by, among other things, evidence that the premises were in a “high crime” area. See also Shoney’s, Inc. v. Hudson, 218 Ga. App. 171, 173-174 (2) (460 SE2d 809) (1995).

Where there are a small number of isolated criminal acts at a complex, the occurrence of such crimes may not indicate a risk of other types of crimes. However, where a complex has experienced a large volume of crime over a period of time, the extent of such crime may indicate fundamental problems with security at the complex, thus making a risk of violent crime more foreseeable. This is particularly so if the complex is located in an area with a high occurrence of violent crimes. Larry Talley, a security consultant testifying as an expert on behalf of the plaintiff, testified that if property crimes are left unchecked in an area, and if there is a lot of violent crime occurring nearby, it is predictable that the property crimes may escalate into more violent crimes. He noted that many large cities such as New York and Los Angeles have successfully attempted to control violent crime by taking steps to deter property crimes.

In this case, there was evidence that the area surrounding the Rivermont complex was experiencing an increase in violent crimes, particularly armed robbery. The trial court held that such evidence was admissible, and that it was up to the jury to decide whether such crime was likely to “spill over” to Rivermont. The court specifically held that “[t]he jury may decide that, given the secluded nature of the Rivermont, ... it made a more attractive target to criminals.” We believe this evidence that Rivermont was located in a high crime area is relevant to the question of whether the increase in property crimes at Rivermont should have placed defendants on notice of the risk of violent crime. Although the particular incidents of property crime were not identical to the robbery of Woodall, they were serious crimes, including burglary and automobile theft. There is evidence that defendants were concerned about the increase in crime, both at Rivermont and in the surrounding area. Internal documents indicate that defendants contemplated “[improvements such as installation of an access gate, burglar alarms and additional fencing,” and hiring a patrol service “in an attempt to discourage the recent increase in crime in the area.” One document notes that “[s]ecurity remains a concern for both prospective tenants and current residents. The installation of an access gate at the entrance to the property is preferred by those residents who have expressed a preference.”

Given the fact that the area adjacent to the Rivermont complex was known as a high-violent crime area, and that defendants were concerned about security issues relating to the increase in crime, we believe that evidence of an increase in property crimes at the complex is relevant to whether defendants should have foreseen a risk of personal injury to their tenants from an attack such as the one on Woodall. In analyzing each prior property crime individually, without reference to any context, the trial court applied an overly rigid interpretation of the Supreme Court’s decisions in Sturbridge and Doe. As discussed above, Georgia law “favors the admission of any relevant evidence, no matter how slight its probative value; evidence of doubtful relevance or competency should be admitted and its weight left to the jury.” Johnson, supra. Because we cannot say that such evidence was inadmissible for any purpose, the trial court erred in granting defendants’ motion to exclude evidence of the various property crimes and of defendants’ knowledge of those crimes.

2. In addition to the various property crimes, the trial court excluded evidence relating to two separate incidents involving suspicious conduct. In one case, a resident told one of defendants’ employees that another resident and her boyfriend had been approached by two “suspicious” persons with a blanket, and that the boyfriend “chased off” the two persons. The trial court, noting that the woman who was approached never reported the incident to the defendants or to the police and that there was no indication of what time of day the incident occurred, found that there was no evidence the incident was criminal in nature.

In another incident, a security guard, Officer Lawal, encountered an individual sitting in the mailbox area. Officer Lawal asked the man if he was a resident, and the man replied that he was visiting a resident but did not remember the apartment number. The man asked Lawal about the security at the complex. Lawal told the man he would have to ask management and asked him to leave the property. The man told Lawal he was “lucky that he was not prepared to do anything,” and said that he would be back. Lawal subsequently learned that the other man was a security guard named Joe, employed by the same company as Lawal, who lived in the Rivermont apartment complex and worked at another complex. The trial court concluded that this incident was not criminal in nature, but was simply a personality clash between two security guards, and that it did not raise an issue as to the foreseeability of the attack upon Woodall.

Decided July 9, 1999.

James A. Shea, Jr., for appellant.

Barnes, Browning, Tanksley & Casurella, Michael K. Jablonski, for appellees.

Because the evidence did not show that either of these two incidents involved criminal activity, we cannot say that the trial court abused its discretion in concluding that the incidents were not relevant in showing the foreseeability of the criminal attack on Woodall. Accordingly, the grant of the motion in limine is affirmed only with respect to these two incidents.

Judgment affirmed in part and reversed in part.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A99A0893.
    ADAMS v. THE STATE.
    (520 SE2d 746)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of possessing marijuana with intent to distribute in violation of the Georgia Controlled Substances Act, possession of a firearm by a convicted felon, driving under the influence of alcohol, no proof of insurance, driving while license suspended or revoked, stop sign violation, and violation of the open container law. The charges arise out of a traffic stop initiated by Columbus Police Officer Nathan Lunsford, who observed defendant disregard a stop sign while not wearing a seat belt. Defendant appeals from the denial of his motion for new trial, pursuant to the grant of an out-of-time appeal. Held:

1. In his first enumeration of error, defendant contends that the evidence was insufficient to support his conviction for possession of a firearm by a convicted felon for want of any evidence of criminal intent. Cornelius v. State, 213 Ga. App. 766, 768 (1) (445 SE2d 800). Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial established that the defendant was the undisputed driver of the vehicle stopped; that a pistol was found on the driver’s side floorboard; and that the pistol was within arm’s reach of the driver, accessible to defendant. According to Officer Lunsford, the pistol was “fully loaded.” On direct examination, defendant testified that he took the gun in his hand to remove its loaded magazine. Nevertheless, on cross-examination, defendant admitted possessing the weapon, knowing he was a convicted felon. Certified copies of defendant’s prior convictions for selling a controlled substance, possessing a controlled substance with intent to distribute, and for obstructing an officer established his status as a convicted felon. This evidence is sufficient to authorize the jury’s verdict, finding the defendant guilty, beyond a reasonable doubt, of possession of a firearm by a convicted felon as alleged in Count 2 of the indictment. OCGA § 16-11-131; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hindman v. State, 234 Ga. App. 758, 763 (2) (507 SE2d 862).

Whether an act is committed with the requisite criminal intent is a question for the jury “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. See Blanton v. State, 191 Ga. App. 454 (1), 455 (382 SE2d 133).

Decided July 9, 1999.

William P. Nash, Jr., for appellant.

2. In his remaining enumerations of error, defendant contends that he was afforded ineffective assistance of counsel at trial. However, nothing of record reflects that these claims were presented to the trial court for determination, either by an amended motion for new trial or in an application for an out-of-time appeal to make an out-of-time motion for new trial upon this special ground. See Bohannon v. State, 262 Ga. 697 (425 SE2d 653). Accordingly, this issue is procedurally defaulted and presents nothing to review. Gantt v. State, 229 Ga. App. 207, 209 (3) (493 SE2d 608).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.

       By its brief on appeal, the State indicates that defendant’s appellate counsel filed an amended motion for new trial in which he added the special ground of ineffective assistance of counsel. At the new trial hearing, trial counsel’s ineffectiveness was argued only in terms of whether trial counsel relayed an offer to the defendant, a claim not enumerated on appeal. The trial court’s order denying defendant’s motion for new trial does not make reference to an amended motion for new trial. Nor was such a motion forwarded with the record on appeal, although defendant’s notice of appeal directs the clerk to “omit nothing from the record.” Accordingly, there is nothing for our review on appeal. Wright v. State, 213 Ga. App. 626, 627 (445 SE2d 377) (“Error must be shown affirmatively by the record, and not by mere recitations in a brief”) (citations and punctuation omitted).


text:
    A99A0176.
    EDWARDS v. THE STATE.
    (518 SE2d 426)
   Ruffin, Judge.

A jury found Jonathan Edwards guilty of trafficking in cocaine. Edwards appeals, contending that the trial court erred in denying his motion to suppress. We affirm.

In reviewing a trial court’s denial of a motion to suppress, we construe the evidence most favorably to uphold the court’s ruling. Wilburn v. State, 230 Ga. App. 619 (497 SE2d 380) (1998). “It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous.” Id.

On November 6, 1996, Deputy Mark Whitwell of the Butts County Sheriff’s Department was patrolling with his drug dog, Robbie. At approximately 3:45 p.m., Whitwell saw Edwards driving southbound on 1-75. Whitwell saw Edwards’ car drift out of its lane several times and noticed that Edwards was not wearing a seat belt. Whitwell pulled Edwards over, and Edwards exited his car and approached the officer. According to Whitwell, Edwards seemed nervous, appeared to focus on his car rather than listen to Whitwell, and stood on 1-75 rather than on the shoulder of the road.

Whitwell noticed that Edwards’ shirt was partially untucked and, for safety purposes, asked Edwards if he could pat him down. While patting Edwards, Whitwell felt a bulge in the waistband of Edwards’ pants. As soon as Whitwell touched the bulge, Edwards quickly stepped away from him. When Whitwell asked Edwards what the bulge was, Edwards responded that “it was just me.”

Whitwell then told Edwards to return to his car, and Whitwell returned to his patrol car to get Robbie. Whitwell walked Robbie around the outside of Edward’s car, and Robbie’s actions indicated that the car contained narcotics. Whitwell ordered Edwards and his passenger out of the car and told them to sit on the guardrail while he searched the car. Whitwell did not find any drugs in the car.

During the search, Whitwell noticed Edwards moving from the guardrail. As Whitwell exited the car to tell Edwards to sit down, he saw a brown paper bag on the ground. The bag contained a plastic bag of white powder that was subsequently identified as 122.1 grams of cocaine.

1. Prior to trial, Edwards moved to suppress the discovered evidence. Edwards claims the trial court erred in failing to suppress this evidence because Whitwell did not have a reasonable suspicion that a crime had been committed.

To justify additional questioning of a driver and the search of a car following a routine traffic stop, an officer must have reasonable suspicion of criminal conduct. Parker v. State, 233 Ga. App. 616, 617-618 (1) (504 SE2d 774) (1998). In order to meet the “reasonable suspicion” standard,

an officer’s investigation during a traffic stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Although this suspicion need not meet the standard of probable cause, it must be more than mere caprice or a hunch or an inclination.

(Citation and punctuation omitted.) Id. at 618.

Edwards argues that Whitwell did not have reasonable suspicion to search for narcotics. We note, however, that Whitwell did not find the cocaine as a result of his search of either Edwards or Edwards’ car. Rather, Whitwell found the bag of cocaine on the ground where Edwards apparently had abandoned it. “There is nothing unlawful in the government’s appropriation of abandoned property, which does not constitute a search or seizure in the legal sense.” Green v. State, 127 Ga. App. 713, 714 (194 SE2d 678) (1972). “The constitutional protection of the Fourth and Fourteenth Amendments does not apply to property which has been abandoned.” Walker v. State, 228 Ga. App. 509, 510 (1) (493 SE2d 193) (1997).

However, if unlawful police conduct coerces the defendant into abandoning the property, then suppression of the evidence may be warranted. Compare Green, supra at 715 (abandonment not coerced because the conduct of the police was lawful). Thus, we must address whether Edwards abandoned the cocaine in response to an unlawful seizure. For Fourth Amendment purposes, a person has been seized “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Punctuation omitted.) Aranda v. State, 226 Ga. App. 157, 158 (1) (486 SE2d 379) (1997). Here, Edwards was seized when Whitwell ordered him from his car. See Reagin v. State, 218 Ga. App. 733, 734 (1) (463 SE2d 39) (1995).

Although Edwards was seized, the seizure was lawful. Whitwell saw Edwards’ car drift out of its lane and saw that Edwards was not wearing his seat belt. Accordingly, Whitwell was authorized to stop Edwards for traffic violations. See Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997). Whitwell noticed that Edwards was acting nervous. Nervous actions alone do not provide a reasonable basis for further detaining and questioning motorists. Holt v. State, 227 Ga. App. 46, 49-50 (487 SE2d 629) (1997). However, Whitwell was entitled to execute a pat-down search for weapons regardless of whether Edwards was acting nervous. Buffington, supra.

During the pat-down, Whitwell felt a bulge in the waistband of Edwards’ pants. Although the bulge did not give rise to probable cause to search Edwards, it was sufficient to establish a reasonable suspicion that Edwards was engaged in criminal conduct of some sort and to warrant further investigation. See Alex v. State, 220 Ga. App. 754, 757 (2) (470 SE2d 305) (1996) (bulge in defendant’s pocket authorized further investigation).

Under these circumstances, Whitwell was authorized to walk the drug dog around Edwards’ vehicle to see whether the dog detected the odor of drugs. See State v. Montford, 217 Ga. App. 339, 340-341 (1) (457 SE2d 229) (1995) (motorist’s extreme nervousness combined with fact that he wore a beeper and an unusual amount of jewelry and carried both a cell phone and a large amount of cash justified detaining motorist during free-air search by drug dog); Pitts v. State, 221 Ga. App. 309 (471 SE2d 270) (1996) (defendant’s anxious behavior combined with conflicting statements given by defendants regarding their itinerary justified detaining defendants for free-air search by drug dog). Once the drug dog alerted to the automobile, Whitwell clearly had reason to further detain Edwards. See Roundtree v. State, 213 Ga. App. 793, 794-795 (446 SE2d 204) (1994) (drug dog’s alert established probable cause).

As Whitwell lawfully detained Edwards, Edwards cannot claim that he was coerced into abandoning the bag of cocaine. Accordingly, the trial court did not err in denying Edwards’ motion to suppress the evidence. See Vines v. State, 142 Ga. App. 616, 617 (237 SE2d 17) (1977).

2. Edwards also argues that a traffic stop for failure to wear a seat belt cannot form the basis of a search for narcotics. Pursuant to OCGA § 40-8-76.1 (f), failure to wear a seat belt “shall not constitute probable cause for violation of any other Code section.” Thus, Edwards contends that Whitwell was permitted to question him only regarding the seat belt violation. This contention lacks merit.

As an initial matter, we note once again that Whitwell found the cocaine on the ground after Edwards abandoned it, and thus the evidence is admissible. Vines, supra. Moreover, nothing in OCGA § 40-8-76.1 (f) prevents an officer who stops a motorist for failing to wear a seat belt from conducting a reasonable investigation to ensure his safety. Davis v. State, 232 Ga. App. 320, 321 (1) (501 SE2d 836) (1998). If, during that investigation, the officer sees evidence of an unrelated crime, the officer may arrest the motorist for the unrelated crime notwithstanding the fact that the motorist originally was stopped for failing to wear a seat belt. Id. at 322 (1). Accordingly, the trial court did not err in refusing to suppress evidence of the cocaine on this ground.

Decided May 12,1999

Reconsideration denied July 12,1999.

Hogue & Hogue, Franklin J. Hogue, Laura D. Hogue, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, James L. Wright III, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J, and Andrews, J., concur.


text:
    A99A0516.
    ELZEY v. THE STATE. MCDOUGALD v. THE STATE.
    A99A0517.
    (519 SE2d 751)
   Ruffin, Judge.

In separate bench trials, Mickey Elzey and Richard McDougald were convicted of possession of methamphetamine. Each defendant appeals the denial of his motion to suppress. Because both cases raise the same issue, we have consolidated them for appeal, and we affirm the trial court’s ruling in each case.

In reviewing a trial court’s ruling 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.” (Punctuation omitted.) Sprinkles v. State, 227 Ga. App. 112 (1) (488 SE2d 492) (1997).

Case No. A99A0517

Fred Granitz, a law enforcement officer with the Department of Natural Resources (DNR), testified that, while on a routine patrol on December 5,1996, he, Officer Harry Luke, and Officer Freddie Hayes approached two hunters who were sitting in a parked truck in the B. F. Grant Wildlife Management Area. Granitz testified that he approached the passenger, Richard McDougald, to ask him about his hunt — “[r]outine questions, conversation, public relations” — and also to check his hunting license. After noticing that McDougald seemed “anxious” and “upset,” Granitz spoke with him about safety issues, including the fact that there had been several tree stand accidents at the management area, and that they had been having a problem with alcohol and drugs. Granitz asked if McDougald had or had been using any drugs, and McDougald replied that he had not. Granitz testified that he then asked for and received permission to search McDougald and the vehicle. Granitz discovered a plastic bag containing methamphetamine in McDougald’s pants.

Case No. A99A0516

Officer Granitz testified that on December 14, 1996, he and Officer Luke were on a routine patrol in the Cedar Creek Wildlife Management Area, assisting with a managed firearm deer hunt. He testified that, as hunters returned from a morning or afternoon hunt, he and Luke would check the various campgrounds in the wildlife management area to speak to the hunters, see if they had killed a deer, and perform public relations. As they approached the Lazenberry Mill hunting campsite, they saw Elzey, who appeared to be breaking camp. Granitz approached Elzey to speak to him and noticed that Elzey was sweating profusely, had red, glassy eyes, and was “sort of nervous acting.” Granitz testified that he spoke to Elzey about safety matters, including deer stands, alcohol, and drugs. He then asked Elzey if he would consent to a search of his person and vehicle. At that point, Elzey reached into the pocket of his coveralls, pulled something out of the pocket, and held it up. Granitz testified that he did not know what Elzey was pulling out of his pocket — “[i]t could have been a weapon, drugs, anything” — so he grabbed Elzeyk wrist and asked what was in his hand. Elzey then dropped a white baggy containing methamphetamine into Officer Luke’s hand.

Officer Luke testified that he heard Granitz ask for and receive permission to search Elzey, and that he saw Elzey produce the methamphetamine from his overalls. Luke testified that he had spoken with Elzey on two occasions earlier in the week. He checked Elzeyk hunting license on one of those occasions, but did not recall whether he checked Elzey’s license the day he was arrested.

On appeal, McDougald and Elzey do not contest the fact that they voluntarily consented to be searched, nor do they challenge the propriety of the officers’ actions in asking for consent or in performing the searches in question. Rather, their sole contention is that the officers had no right to approach them in the first place to check their hunting licenses and identification. They argue that the officers’ actions were analogous to setting up a roadblock to stop motorists and check for driver’s licenses. Citing State v. Golden, 171 Ga. App. 27, 29-30 (2) (318 SE2d 693) (1984), they contend that the stops were unlawful because the officers exercised discretion in deciding which hunters to approach and were not acting pursuant to orders of a supervisor.

Defendants’ assertions are without merit, as the actions of a DNR officer in approaching hunters in a state-operated wildlife management area are not analogous to those of a police officer conducting a roadblock on a public highway. Hunting in Georgia is a highly regulated activity, governed by a complex set of rules designed for a variety of purposes, including safety, wild game management, and revenue generation. See OCGA § 27-1-1 et seq. Pursuant to OCGA § 27-1-3 (a), all wildlife in Georgia is owned by the state and within the custody of the DNR. OCGA § 27-1-3 (b) states that hunting

is declared to be a privilege to be exercised only in accordance with the laws granting such privilege. Every person exercising this privilege does so subject to the right of the state to regulate hunting . . . and it shall be unlawful for any person participating in the privileges of hunting ... to refuse to permit authorized employees of the [DNR] to inspect and count such wildlife to ascertain whether the requirements of the wildlife laws and regulations are being faithfully complied with.

Among other things, no individual is permitted to hunt in a state-operated wildlife management area without having purchased a special wildlife management area stamp as well as a hunting license. OCGA §§ 27-1-33 (a); 27-2-23 (9); Ga. Admin. Code § 391-4-2-.13. In addition to promoting safety and game management, this requirement is intended to generate revenue to support DNR’s operations. See OCGA § 27-1-13 (a). Pursuant to OCGA § 27-2-28 (a), it is unlawful for an individual to refuse to produce his hunting license or permit, as well as his driver’s license or other equally reliable identification, when requested to do so by a DNR officer.

In his special concurrence in Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), Justice Blackmun recognized the special nature of hunting and its effect on search and seizure law. In that case, the Supreme Court held that a suspicionless stop of an automobile to check the driver’s license and registration violates the Fourth Amendment. Id. at 663. In his special concurrence, Justice Blackmun, joined by Justice Powell, stated that

I would not regard the present case as a precedent that throws any constitutional shadow upon the necessarily somewhat individualized and perhaps largely random examinations by game wardens in the performance of their duties. In a situation of that type, it seems to me, the Court’s balancing process, and the value factors under consideration, would be quite different.

Id. at 664 (Blackmun, J., concurring specially).

Other state courts that have considered the issue have recognized that the peculiar nature of hunting leads to a diminished expectation of privacy on the part of hunters. In People v. Perez, 51 Cal. App.4th 1168, 1177-1178 (59 Cal. Rptr.2d 596) (1996), a California appellate court held that

[i]n analyzing the réasonableness of the search (inspection) and seizure (detention) of hunters, the special nature of hunting is significant. . . . [¶] unting is a highly regulated activity. The wild game within a state belongs to the people in their collective, sovereign capacity; it is not the subject of private ownership, except in so far as the people may elect to make it so; and they may, if they see fit, absolutely prohibit the taking of it, or any traffic or commerce in it, if deemed necessary for its protection or preservation, or the public good. The high degree of regulation over the privilege of hunting, in turn, reduces a hunter’s reasonable expectation of privacy. . . . Given the highly regulated nature of hunting and the corresponding reduced expectation of privacy of hunters in their gear and their take from hunting, we find it is reasonable to detain hunters briefly, near hunting areas during hunting season, to inspect their licenses, tags, equipment, and any wildlife taken.

(Citations and punctuation omitted.) Similarly, in State v. McHugh, 630 S2d 1259, 1265 (La. 1994), the Louisiana Supreme Court recognized that

[t]he state has a special governmental need outside the ordinary law enforcement context to have its wildlife law officers stop hunters during open season near game habitat, check for hunting licenses, inquire about game taken, and request to inspect game in field possession. In this capacity, the wildlife officers act not only as law enforcers but also as public trustees protecting, conserving and promoting replenishment of the wildlife of the state. One of their trusteeship functions is to serve as front line gatherers of information necessary to the intelligent formulation and revision of laws, regulations and policies affecting and regulating seasons, limits, management areas, food chains and supplies, and other factors related to the protection of the wildlife.

(Citations omitted.) The court thus upheld suspicionless stops of hunters to check for licenses and make game inquiries, reasoning that “the overall degree of interference with the privacy of citizens in general is slight because it is far less intrusive than that involved in other forms of suspicionless stops.” Id. at 1266.

In People v. Layton, 196 Ill. App.3d 78 (552 NE2d 1280) (1990), an Illinois appellate court upheld a stop similar to those in the present case. In Layton, a conservation officer observed several hunters returning to their vehicles, apparently after concluding their hunt. The officer then approached the hunters to check their hunting licenses and inspect their vehicles for illegal game. During his search of the defendant’s vehicle, the officer discovered several bags containing cannabis. Id. at 79. The appellate court upheld the search, holding that, given the highly regulated nature of hunting, hunters are deemed to have consented to certain intrusions on their privacy. Id. at 87. The court expressly rejected the defendant’s contention that hunters may properly be stopped and searched only at designated roadblocks and game checkpoints, stating that “[t]he fact that such roadblock and checkpoint stops have been upheld cannot be equated to a rule that these are the only methods of enforcing game laws which do not violate the fourth amendment.” Id. at 86. The court held that “[i]t is elemental that wildlife licensing and regulatory provisions must be enforceable during the hunt and immediately following it. The roving conservation officer patrol stopping hunters encountered in the field, as here, does not violate the fourth amendment.” Id. at 88.

We believe the above cases correctly recognize that actions by wildlife law enforcement officers in questioning hunters and checking their licenses and identification may be reasonable, even though such actions might be unreasonable outside the hunting context. Clearly, a DNR officer may approach a hunter in a state-operated wildlife management area to determine whether the hunter has the necessary license and permits and to ask him questions about his hunt, regardless of whether the officer has reason to suspect that the hunter has broken any laws. See Layton, supra; Perez, supra.

Although defendants argue that the officers did not stop every hunter they saw, we see no reason why this should affect the validity of their actions, particularly since defendants do not contend that the officers’ stated reasons for approaching them were pretextual. Moreover, Officer Luke testified in McDougald’s trial that it was his practice to stop every hunter he encountered going into or coming out of the woods, although he would not stop hunters while in a tree stand and would not necessarily check licenses when he encountered people in camp in the evening when they were not actively hunting. He testified that there were about 450-500 hunters in the management area on the day in question. Officer Granitz testified that he would generally check every hunter’s license, unless he had already checked it previously. Officer Luke also testified in Elzey’s trial that he would generally check every hunter’s license unless he had already checked it previously. In McHugh, supra, the relevant state statute required game agents to check every hunter in their territory. However, the court held that the failure to check all hunters due to lack of forces did not render the agents’ actions arbitrary, and that “a claim that a particular exercise of discretion in making suspicionless hunting license checks and game inquiries was unreasonable is subject to post-stop judicial review.” Id. at 1266-1267. In this case, defendants have not shown that the officers acted unreasonably or arbitrarily in approaching them.

Decided June 24, 1999

Reconsideration dismissed July 12, 1999

William S. Hardman, for appellants.

Fredric D. Bright, District Attorney, Shelley S. Tice, Richard M. Gailey, Jr., Assistant District Attorneys, for appellee.

Defendants do not contend on appeal that the officers exceeded the scope of permissible activity in asking for consent to search, nor do they challenge the manner in which the officers performed the searches in question, but argue simply that the officers had no right to approach them in the first place to check their licenses and identification. Because this contention is without merit, the denials of their motions to suppress must be affirmed.

Judgments affirmed.

McMurray, P. J, and Andrews, J., concur.

       With respect to Elzey, we note that Officer Luke, but not Officer Granitz, had already checked Elzey’s license a day or two before the incident in question, although he apparently had not checked Elzey’s hunting companion’s license. Officer Luke’s testimony shows that he approached Elzey not to check his hunting license, but to ask about his hunt and talk about safety issues. Elzey does not argue that this fact affects the validity of the officers’ actions in approaching him.


text:
    A99A0554.
    BUICE v. THE STATE.
    (520 SE2d 258)
   Ruffin, Judge.

Abe Lee Buice was charged with molesting his ten-year-old daughter on two occasions by placing his finger in her vagina. A Spalding County jury found Buice guilty of two counts of child molestation, and Buice appeals, asserting numerous errors. We affirm.

1. In his first enumeration of error, Buice contends that the trial court erred in allowing the State to try him on an indictment that had been nolle prossed. Buice was indicted twice, once in 1994 and once in 1996. The 1994 indictment accused Buice of placing his finger in the vagina of his daughter, once on July 14, 1994, and once during the month of September 1994. The 1996 indictment accused Buice of fondling the vagina of his daughter twice during the month of September 1994.

The case was scheduled for trial on February 24,1997. On February 20, 1997, the trial court entered an order consenting to the State’s entry of nolle prosequi on the 1994 indictment because the charges had been re-indicted in 1996. Shortly before trial, the State informed the trial court that the State had made a mistake in requesting the entry of nolle prosequi on the 1994 indictment. The State then moved for an order from the trial court rescinding the order of nolle prosequi, and, on February 24, 1997, the trial court issued an order vacating its earlier order.

Buice argues that the State should not have been permitted to try him on the 1994 indictment. According to Buice, once an order of nolle prosequi has been entered, “the indictment is dead and no subsequent Order can bring the dead indictment back to life.” Thus, Buice argues that the State’s only recourse was to re-indict him prior to proceeding with the trial.

An order of nolle prosequi “is the State’s formal action on its decision not to further prosecute that indictment.” Redding v. State, 205 Ga. App. 613, 614 (2) (423 SE2d 10) (1992). “A nolle prosequi cannot be entered without the consent of the trial court.” State v. Davis, 159 Ga. App. 537, 538 (1) (284 SE2d 51) (1981); OCGA § 17-8-3. The entry of nolle prosequi does not act as an acquittal or bar future prosecution for the same offense. McGahee v. State, 133 Ga. App. 964, 966 (3) (213 SE2d 91) (1975). Thus, an order of nolle prosequi “is not necessarily the ending of the prosecution, but the continuance of the same” as the State clearly has the authority to re-indict the defendant for the same offense. Earlywine v. Strickland, 145 Ga. App. 626, 627 (244 SE2d 118) (1978).

The issue before us is whether, in addition to re-indicting the defendant, the State can revive a prosecution by petitioning the trial court to vacate its order consenting to the entry of nolle prosequi. In other words, does the trial court have authority to rescind its approval of the entry of nolle prosequi? Although we are aware of no Georgia case on point, several other jurisdictions have dealt with this issue and provide some guidance.

The Illinois Supreme Court addressed this issue in People v. Watson, 324 Ill. 177 (68 NE2d 265) (1946) and reasoned that:

[cjourts of general jurisdiction have inherent authority, during the term, to vacate any judgment or order that may have been made at that term. This was the rule at common law and prevails in most jurisdictions. Considering then that a court has the inherent power to set aside judgments and orders made during the term, can any sound argument be advanced why a court has not the power to set aside a dismissal of an indictment or information and reinstate the case during the term at which the dismissal was entered? The general rule is that a nolle prosequi or a dismissal of a criminal charge, if made prior to the time a jury is impaneled and sworn, is not a bar to a subsequent prosecution for the same offense. There is no difference, so far as the defendant’s rights are concerned, whether, after the dismissal of a charge, a new information or indictment is filed or the order of dismissal set aside and defendant tried on the old information or indictment. An order of dismissal or a nolle prose-qui in a criminal case may be set aside during the term at which the order is made.

(Punctuation omitted.) Id. at 181.

Similar reasoning has been employed in other jurisdictions including the Ninth Circuit, Missouri, Arizona and Pennsylvania. United States v. Emens, 565 F2d 1142, 1144-1145 (9th Cir. 1977) (dismissal of indictment); State v. Montgomery, 276 SW2d 166, 167-168 (Mo. 1955); Commonwealth v. Ashe, 138 Pa. Super. 222, 227-228 (11 A2d 173) (1940); Condos v. Superior Court for Maricopa County, 29 Ariz. 186, 190-191 (239 P. 1032) (1925) (dismissal of action).

As in Illinois, courts of record in Georgia “retain full control over orders and judgments during the term at which they were rendered, and, in the exercise of a sound discretion, may revise or vacate them.” See Drain Tile Machine v. McCannon, 80 Ga. App. 373, 375 (56 SE2d 165) (1949); see also Bowen v. State, 144 Ga. App. 329, 330-331 (241 SE2d 431) (1977). In addition, Georgia follows the general rule that a nolle prosequi or a dismissal of a criminal charge is not a bar to a subsequent prosecution for the same offense. Earlywine, supra. Thus, we conclude that, notwithstanding Buice’s contention to the contrary, trial courts in Georgia do have authority to vacate an order of nolle prosequi. See Clark v. Black, 136 Ga. 812, 816 (5) (72 SE 251) (1911) (“the entry of nolle prosequi has the same force of conclusiveness ordinarily incidental to judgments, and cannot be collaterally attacked”). Accordingly, the trial court did not err in allowing the State to proceed on the indictment.

2. Buice asserts that the trial court erred in allowing a witness to testify regarding the victim’s credibility. Prior to admitting the testimony of Suzanne Howell from the Department of Family & Children Services regarding the victim’s statement under the Child/Victim Hearsay Statute, OCGA § 24-3-16, the trial court asked Howell, in the presence of the jury, whether the victim had exhibited “a general attitude of credibility” during the interview process. Howell responded that she “had a very strong conviction in her heart” that the victim was telling the truth. According to Buice, the trial court erred in questioning a witness about the victim’s credibility in front of the jury. We agree.

It is well settled that “[i]n no circumstances may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” Price v. State, 220 Ga. App. 176, 177 (2) (b) (469 SE2d 333) (1996); Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994); Guest v. State, 201 Ga. App. 506, 507 (1) (411 SE2d 364) (1991). The credibility of a witness is a matter exclusively for determination by the jury. OCGA § 24-9-80. Testimony that another witness believes the victim impermissibly bolsters the credibility of the victim. Roberson, supra. Accordingly, Howell’s statement regarding the victim’s truthfulness constituted impermissible bolstering. Cline v. State, 224 Ga. App. 235, 237 (2) (480 SE2d 269) (1997).

In this case, the victim was not consistent regarding her allegations of abuse. When Howell first interviewed her, the victim claimed that, on July 14,1994, Buice put his hands in her panties and put his finger in her vagina. During a subsequent interview with Howell, however, the victim recanted, telling Howell that the incident “didn’t happen.” At trial, the victim once again claimed that her father had molested her by rubbing her “private parts.” With respect to her prior inconsistent statement to Howell, the victim testified that she recanted during the second interview with Howell as a result of family pressure.

Prior to addressing the victim’s credibility, Howell testified that she had worked as an investigator on children’s cases from 1987 to 1995 and that she had received specialized training with respect to handling molestation cases and interviewing victims. In view of Howell’s expertise, her testimony that she believed the victim was truthful would have been particularly compelling to the jurors. It is for this reason that our courts have consistently held that expert witnesses may not testify regarding truthfulness or credibility. Smith v. State, 259 Ga. 135, 138 (2) (377 SE2d 158) (1989); Cline, supra; Price, supra; Roberson, supra; Guest, supra.

The State contends that Howell’s testimony was not objectionable because it was not the result of an attempt by the State to bolster the victim’s credibility. Rather, the statement was made in response to the trial court’s inquiry under OCGA § 24-3-16. However, as Howell’s statement was made in front of the jury, it was objectionable notwithstanding the fact that the trial court rather than the State elicited the testimony.

Pursuant to OCGA § 24-3-16, a trial court may admit

a statement made by a child under the age of 14 years describing any act of sexual contact. . . performed with or on the child by another ... if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

The Code section does not specify the procedure the trial court should use in determining whether to admit such statements. In Reynolds v. State, 257 Ga. 725 (363 SE2d 249) (1988), the Supreme Court concluded that a trial court is not required to conduct a hearing prior to admitting the testimony. Id. at 726 (2). However, if the trial court does choose to conduct such a hearing and to ask pointed questions regarding a victim’s credibility, logic dictates that the trial court conduct the hearing outside the presence of the jury. Here, in questioning Howell in front of the jury, the trial court violated well-established rules forbidding testimony that bolsters the credibility of the victim.

Despite the impropriety of Howell’s testimony, Buice did not object to its admission at trial. As a general rule, “it is too late to urge objections to the admission of evidence after it has been admitted without objection. It is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Punctuation omitted.) Davitt v. State, 232 Ga. App. 427 (1) (502 SE2d 300) (1998). However, there is an exception to this general rule in cases of plain error. Sanchez v. State, 234 Ga. App. 809, 811 (3) (508 SE2d 185) (1998). “[P]lain error [is] that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” Hittson v. State, 264 Ga. 682, 691 (15) (449 SE2d 586) (1994). Thus, we must determine whether the admission of Howell’s testimony regarding the victim’s truthfulness constitutes plain error.

Although we do not condone the trial court’s conduct, we cannot say that it constitutes plain error. The victim’s testimony was not the only evidence linking Buice to the crimes. Compare Price, supra (no evidence of molestation except testimony of victims). Here, Buice confessed to the crime. Given this confession, we find it improbable that Howell’s testimony was the deciding factor for jurors. See Cline, supra. As this is not a case of plain error, Buice waived the error by failing to object. Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997).

3. Buice contends the trial court erred in admitting evidence of similar transactions without first conducting a hearing in accordance with Uniform Superior Court Rule (USCR) 31.3. Although Buice failed to object to the admission of any of the allegedly objectionable testimony, this Court has held that failure to object under these circumstances does not constitute waiver. Riddle v. State, 208 Ga. App. 8, 10-11 (1) (b) (430 SE2d 153) (1993). Thus, we must determine whether the evidence was erroneously admitted. Even if the trial court did err in admitting similar transaction evidence, the error alone “is not automatically grounds for a new trial but is subject to scrutiny for harmless error.” Hall v. State, 230 Ga. App. 741, 743 (497 SE2d 603) (1998).

Buice cites numerous instances where he claims the prosecution elicited “devastating and prejudicial other crime evidence.” The first occurred after the victim testified that her sister, Michelle, had asked her whether her father had “touched [her] anyplace that was wrong.” When the prosecutor asked the victim why Michelle asked the question, the victim responded that she did not know, but that she “had heard that when [Michelle] was little he did the same thing to her.” The prosecutor did not ask any other questions pertaining to the alleged molestation of the victim’s sister. Pretermitting whether the victim’s statement constitutes evidence of a similar transaction, we fail to see how Buice was harmed. The victim did not testify that Buice had molested Michelle, merely that she had heard about an earlier incident. Accordingly, the admission of this testimony was harmless. Hall, supra.

Next, Buice complains that the trial court erred in allowing the victim to testify about other instances of molestation by Buice that were not listed in the indictment. However, there is no requirement that the State comply with USCR 31.3 when presenting evidence of prior difficulties between the victim and the accused. Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

Buice claims as error the admission of evidence that he molested his daughter, Michelle, and his wife, Jamie, when the two were children. During his case, Buice called Michelle and Jamie as witnesses. Both Jamie and Michelle testified on direct examination about Michelle’s allegation that Buice had molested her as a child and claimed that the allegations were false. Thus, the trial court did not err in allowing the State to impeach the two with evidence of their prior statements about the molestation. See Chezem v. State, 199 Ga. App. 869, 871 (3) (406 SE2d 522) (1991).

On cross-examination, the State questioned Jamie about allegations she had made that Buice had molested her as a child. Jamie denied the allegations, and the State attempted to impeach her with evidence of a prior inconsistent statement. Even if the admission of this evidence was error, we are persuaded it was harmless, especially in view of the fact that Jamie, the alleged victim, maintained that Buice never molested her. Hall, supra.

Finally, we note that after Jamie and Michelle testified, Buice testified on direct examination that he never abused either the victim, or Michelle, or any child. Thus, Buice opened the door for the State’s rebuttal testimony regarding Michelle’s and Jamie’s prior allegations of molestation. See Davidson v. State, 231 Ga. App. 605, 612 (6) (499 SE2d 697) (1998); Landrum v. State, 210 Ga. App. 275, 278 (7) (436 SE2d 40) (1993). Accordingly, this enumeration of error does not require reversal.

4. Buice argues that a fatal variance existed between the indictment and the evidence presented at trial. Specifically, Buice notes that although the indictment charged him with putting his finger in the vagina of the victim, the victim testified that he never placed his finger in her vagina. Rather, she testified that Buice rubbed his hand on her vagina.

This discrepancy in the evidence does not constitute a fatal variance. Our courts no longer employ

an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance fatal.

(Citation and punctuation omitted.) Turner v. State, 231 Ga. App. 747-748 (1) (500 SE2d 628) (1998).

In Winter v. State, 171 Ga. App. 511-512 (1) (320 SE2d 233) (1984), we addressed the same issue Buice raises here — whether a fatal variance exists when the defendant is charged with placing his finger in the vagina of his victim, but the victim testifies that the defendant never penetrated the vagina. We concluded that, under those circumstances, there was no fatal variance as the defendant was sufficiently apprised of the charges against him. Id. We further noted that there was no danger that the defendant was misled or prejudiced by the language of the indictment. Id. As there is no meaningful distinction between this case and Winter, Buice’s claim of error lacks merit.

5. Buice next contends the trial court erred in charging the jury on child molestation. In defining this offense, the trial court recited in its entirety OCGA § 16-6-4 (a), which reads: “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

As a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable. Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996). Error arises, however, “if the indictment specifies the commission of a crime by only one of several methods possible under the statute and a reasonable probability exists that the jury convicted the defendant of committing the offense in a manner not charged in the indictment.” (Punctuation omitted.) Hunley v. State, 227 Ga. App. 234, 235 (1) (488 SE2d 716) (1997). Contrary to Buice’s contention, the trial court did not err in charging the jury. As an initial matter, OCGA § 16-6-4 (a) does not provide several methods for committing the offense of child molestation. Day v. State, 193 Ga. App. 179, 180 (3) (387 SE2d 409) (1989). Thus, it is highly unlikely that the jury found Buice guilty for committing the offense in some other manner than that charged in the indictment.

Moreover, prior to defining child molestation, the trial court read the indictment to the jurors, informing them of the exact offenses for which Buice had been charged. After reciting OCGA § 16-6-4 (a), the trial court instructed the jury that Buice’s guilt must be based upon the offenses as set forth in the indictment. Thus, the trial court properly limited the elements of the crime to those charged in the indictment. Moses v. State, 270 Ga. 127, 129 (4) (508 SE2d 661) (1998); Potts v. State, 207 Ga. App. 863, 865 (1) (429 SE2d 526) (1993). Under these circumstances, we find no error.

6. In four enumerations of error, Buice argues that the trial court erred in refusing to grant his motion for new trial because he received ineffective assistance of trial counsel. Buice bears the burden of establishing that he received ineffective assistance of trial counsel. Tucker v. State, 232 Ga. App. 350, 351 (501 SE2d 868) (1998). To do so, Buice must show not only that his trial counsel’s performance was deficient, but also that the deficiency so prejudiced his defense that, but for trial counsel’s performance, a reasonable probability exists that the result of the trial would have been different. Mency v. State, 228 Ga. App. 640, 642 (2) (492 SE2d 692) (1997). In order for Buice to succeed in his claim, he

must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. We will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result.

(Citation and punctuation omitted.) Id.

(a) Buice claims that his trial counsel was ineffective because she failed to object when DFACS witness Howell testified regarding the victim’s credibility. At the hearing on Buice’s motion for new trial, his trial counsel testified that she chose not to object because she did not feel that Howell’s testimony hurt Buice’s case. Pretermitting whether counsel’s decision not to object to Howell’s testimony constituted ineffective assistance, it does not require reversal as Buice fails to establish prejudice. For the reasons discussed in Division 2, we are persuaded that Howell’s statements regarding the victim’s credibility were not so significant as to have contributed to the jury’s verdict. See Moss v. State, 216 Ga. App. 711, 714 (5) (455 SE2d 411) (1995).

(b) Buice also argues that his trial counsel was ineffective in failing to object to the admission of similar transaction evidence because the trial court did not conduct a hearing on the admissibility of the evidence in accordance with USCR 31.1 and 31.3.

At the hearing on Buice’s motion for new trial, his trial attorney stated that Buice insisted on taking the stand and testifying in such a way that the allegations of molestation against Michelle and Jamie would surface. In addition, Buice insisted that both Michelle and Jamie, who had recanted their earlier accusations of molestation, testify on his behalf. Buice’s trial counsel advised Buice that, by testifying and by calling Jamie and Michelle as witnesses, he would open the door to allegations that he had abused these two women. Nevertheless, Buice and his attorney decided to confront the allegations of molestation directly. Accordingly, the decision to introduce the prior allegations of molestation constituted a tactical decision. The fact that Buice now disagrees with this tactic does not render his counsel’s performance deficient. Mize v. State, 269 Ga. 646, 655 (11) (501 SE2d 219) (1998).

Buice took the stand at the hearing on the motion for new trial and gave a conflicting version of events. Buice testified that he had not wanted evidence regarding the prior allegations of molestation admitted during trial. Determining the credibility of the witnesses at the hearing on Buice’s motion for new trial was a matter within the trial court’s discretion. Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997). Here, we cannot say that the trial court’s decision to believe the testimony of trial counsel over that of Buice was clearly erroneous. Accordingly, we will not disturb the trial court’s finding on appeal. York v. State, 207 Ga. App. 494, 497 (2) (d) (428 SE2d 113) (1993).

Decided June 29, 1999

Reconsideration denied July 12, 1999

Brian Steel, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

(c) In a related claim, Buice asserts that his trial counsel should have requested a limiting instruction on the evidence of other crimes. Buice’s trial counsel explained that she opted not to request such an instruction because she “did not want to characterize [the prior allegations of molestation] as similar transactions or crimes or as anything that had been proven to have occurred.” Since counsel’s decision may be considered trial strategy, reversal is not required. Johnson v. State, 268 Ga. 416, 419 (4) (490 SE2d 91) (1997).

(d) Buice argues that his trial counsel rendered ineffective assistance based on her failure to request a jury instruction that prior inconsistent statements can be considered as substantive evidence. During the State’s case in chief, the victim testified that, prior to trial, she had been pressured by family members into withdrawing her allegations of molestation. Both the victim and Howell testified that, during one meeting between the two, the victim denied having been molested. On cross-examination, Buice’s attorney questioned the victim pointedly about her prior inconsistent statements. However, Buice’s trial attorney admittedly did not request a jury instruction on prior inconsistent statements.

We find no error in trial counsel’s decision. As the Supreme Court held, “[t]he failure to give a charge on prior inconsistent statements as substantive evidence is not error as absent instructions to the contrary, the jury surely regarded substantively all the evidence presented to it.” (Punctuation omitted.) Caldwell v. State, 263 Ga. 560, 564 (11) (436 SE2d 488) (1993). Thus, this enumeration of error lacks merit.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       We note that Buice does not claim that he was prejudiced or surprised by the trial court’s February 24 order.

       Since it is unnecessary to our analysis, we do not address whether Riddle was implicitly overruled by the Supreme Court’s decisions in State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998) and State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998).

       Buice is five years older than his wife. When Buice’s wife was a child, her mother lived with Buice’s father and Buice and Jamie lived together as stepbrother and stepsister.


author: Pope, Presiding Judge.

text:
    A99A0053.
    HUYNH v. THE STATE.
    (518 SE2d 920)
   Pope, Presiding Judge.

Defendant Tri Huynh was convicted of trafficking in cocaine and possession with the intent to distribute marijuana. He appeals and we affirm.

On March 28, 1997, a Gwinnett County deputy followed Tri Huynh’s car and one other car at the request of an investigator with the Gwinnett County Narcotics Task Force. The investigator indicated to the deputy that one of the cars might contain illegal drugs and he instructed the deputy to pull over either car if the driver committed a traffic offense.

The deputy testified he observed Huynh unlawfully change lanes without using a turn signal while in close proximity to other cars. See OCGA § 40-6-123. The deputy pulled Huynh over, verbally warned him and said he was free to leave. As Huynh began to walk away, the deputy asked for permission to search his vehicle. Huynh consented and signed a voluntary consent to search form. The deputy had a drug-detector dog in his patrol car and he walked the dog around the outside of Huynh’s car. When the dog alerted at the driver’s door, the deputy searched the car’s interior and located what appeared to be contraband.

1. Huynh first argues that the initial stop was illegal because the stop was pretextual and the deputy lacked probable cause. Thus, he argues, the trial court erred in denying his motion to suppress.

The United States Supreme Court has held that when an 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, and even if a reasonable officer would not have made the stop under the circumstances. Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996); see Welborn v. State, 232 Ga. App. 837 (2) (503 SE2d 85) (1998). “In other words, if the driver of a stopped car has broken a traffic law, no matter how relatively minor, a motion to suppress evidence can no longer be based on the argument that the stop was pretextual.” Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997). In this case the trial court found Huynh was not illegally stopped under the Fourth Amendment because the deputy testified he observed Huynh improperly change lanes.

Huynh argues this case is distinguishable from Brantley because the defendant in Brantley had not been specifically targeted when he was pulled over for speeding and the officer ultimately searched his car and discovered cocaine. Here, the deputy suspected Huynh of drug trafficking and followed him until he violated a traffic law. But even if the deputy had ulterior motives in pulling over Huynh, the stop does not violate Huynh’s Fourth Amendment rights as long as some traffic violation occurred. See State v. Hall, 235 Ga. App. 412 (509 SE2d 701) (1998) (physical precedent only) (finding a legal stop where the Gwinnett County Drug Task Force instructed an officer to follow a car suspected to contain drugs and to stop it when the driver committed a traffic violation).

Huynh next challenges whether any improper lane change occurred to justify the stop. In this case the deputy testified that Huynh “zigzagged” through traffic by weaving in between other cars on the road without using a signal. Huynh, however, challenges the credibility of the deputy’s testimony by pointing out the deputy did not note his observations in his police report. On an appeal from the denial of a motion to suppress, however, we must defer to the trial court unless the ruling was clearly erroneous. Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990). Here, the trial court found the deputy credible and we defer to that judgment. Thus, we find the deputy had a sufficiently specific basis to justify the initial stop.

Although an officer may conduct a brief investigative stop of a vehicle [cit.], such a stop must be justified by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).

Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). “What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.” (Citations and punctuation omitted.) Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544) (1997).

The deputy had specific and articulable facts to make the initial stop. OCGA § 40-6-123 provides, in relevant part, that

(a) No person shall . . . change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. . . . (b) A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.

The statute’s language indicates that a turn signal is not required if changing lanes without a signal is reasonably safe. The deputy’s testimony indicated that Huynh’s driving was not “reasonably safe” within the meaning of the statute. Cf. Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996); see also State v. Reddy, 236 Ga. App. 106 (1) (511 SE2d 530) (1999).

2. Huynh next argues that his consent to search was not voluntary because he did not understand English. The State rebutted this contention by offering the deputy’s testimony, which indicates that Huynh properly responded to the deputy’s questions during the traffic stop. Thus, though Huynh offered

some [contradicting] evidence that [he] did not understand English well, there was also evidence that he did. The question of whether consent was given is a fact question, and because there was competent evidence to support the trial court’s ruling on this question, we will not disturb it. [Cit.]

Martinez-Rodriguez v. State, 195 Ga. App. 491, 492 (3) (393 SE2d 748) (1990).

3. Huynh additionally asserts that the evidence was insufficient to support the verdict. Reviewing the evidence in the light most favorable to the verdict, we find the record reflects ample evidence to support the jury’s findings under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The fact that officers saw Huynh place the bag containing the drugs in his car and then later found the drugs during the traffic stop is sufficient to prove possession. Further, the jury could imply Huynh’s intent to distribute based on the amount of drugs discovered. See, e.g., Palmer v. State, 210 Ga. App. 717, 718 (437 SE2d 490) (1993).

4. Huynh next contends that the trial court erred by refusing to instruct the jury, upon written request, to disregard any witness’ testimony who knowingly swore falsely at trial, unless his testimony is corroborated by other evidence. See OCGA § 24-9-85 (b). Huynh argues the charge was warranted because the deputy wilfully swore falsely by first stating he was on “routine patrol” and then admitting that he had been called in early specifically to assist in this investigation. Also, Huynh argues that the deputy’s testimony concerning improper lane changes required the jury charge because that testimony is not supported by the police report.

An inconsistency, however, does not necessarily imply an intentional lie. OCGA § 24-9-85 is only applicable when the witness either admits that he intentionally swore falsely, or that intention is manifest from his testimony. See Warnock v. State, 195 Ga. App. 537, 538 (1) (394 SE2d 382) (1990). Huynh, however, only points to discrepancies that challenge the deputy’s credibility. It does not necessarily follow that the deputy intentionally lied because he added details of the arrest at trial that he did not indicate in his police report. Neither does it follow that the deputy purposefully lied when he characterized “routine patrol” differently from the defense attorney on cross-examination.

Decided June 4, 1999 —

Reconsideration denied July 13, 1999

Lenzer & Lenzer, Robert W. Lenzer, Thomas R Lenzer, for appellant.

Daniel J. Porter, District Attorney, Annette S. Malena, Assistant District Attorney, for appellee.

5. Finally, Huynh asserts the jury verdict form was impermissi-bly suggestive in that the “guilty” option was listed before the “not guilty” option. This claim is without merit. Because the trial court instructed the jury on how to use the verdict form and the “not guilty” option was clearly indicated, “no reasonable juror could have been misled into believing that option was not available.” Chapman v. State, 258 Ga. 214, 217 (4) (367 SE2d 541) (1988).

Judgment affirmed.

Smith and Eldridge, JJ, concur.


text:
    A99A0060.
    JERNIGAN v. THE STATE.
    (517 SE2d 370)
   Ruffin, Judge.

Janet Jernigan appeals the trial court’s denial of her motion to dismiss for violation of her right to a speedy trial. Jernigan contends that the delay of over 17 months between her arrest for driving under the influence and her trial for this offense deprived her of her right to a speedy trial as guaranteed by both the Sixth Amendment of the United States Constitution and the Constitution of the State of Georgia. For reasons discussed below, we affirm the trial court’s denial of Jernigan’s motion.

Jernigan admittedly did not file a statutory demand for speedy trial pursuant to OCGA § 17-7-170. Accordingly, we must analyze her claim of constitutional violation under the framework set forth in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Snow v. State, 229 Ga. App. 532-533 (494 SE2d 309) (1997). Under Barker, four factors must be analyzed in determining whether a defendant’s constitutional rights to speedy trial have been violated, including: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of her right; and (4) the prejudice to the defendant. Jackson v. State, 231 Ga. App. 187,188 (2) (498 SE2d 780) (1998). Courts must undertake a balancing process in weighing these factors. Snow, supra. “Absent an abuse of discretion, the decision of the trial court must be affirmed.” Id.

We look first to the 17-month delay. “Mere passage of time, standing alone, does not compel a finding of denial of due process.” Obiozor v. State, 213 Ga. App. 523, 524 (2) (b) (445 SE2d 553) (1994). Nevertheless, we find that the delay of 17 months raises a threshold presumption of prejudice. Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997); Chambers v. State, 213 Ga. App. 414, 415 (1) (a) (444 SE2d 820) (1994). This presumption of prejudice triggers the inquiry into the remaining factors set forth in Barker. Johnson, supra.

The reasons for the delay are myriad. Jernigan was arrested for driving under the influence on December 2, 1995. Following Jemi-gan’s demand for jury trial, a trial was scheduled for March 26, 1996. On this date, the State indicated it needed additional time to follow up on Jernigan’s blood test. There is no indication in the record that Jernigan opposed this continuance. Accordingly, the trial court rescheduled the trial for April 29, 1996.

On April 29, Jemigan’s attorney, Billy Spruell, was not present in court and another attorney requested a continuance on behalf of Jernigan. The trial court rescheduled the trial for May 15, 1996. On May 15, Jernigan announced ready for trial, but the State requested a continuance. Jernigan did not object to the continuance and the trial court rescheduled the trial for May 29, 1996. On May 29, Jemi-gan requested another continuance because Spruell had a conflict. The trial court rescheduled the trial for August 29, 1996.

On August 28, 1996, Spruell appeared in court and announced ready for trial. The State contended that the trial actually was scheduled for August 29, 1996. It is apparent from the record that there was some confusion regarding the matter, although the exact nature of this confusion is not clear. Accordingly, the trial court rescheduled the trial for October 16, 1996.

On October 16, the State requested a continuance because its witnesses, who had testified at an earlier trial, had left. Although Spruell objected to this continuance, his client was not in court at the time and, thus, it is unclear whether he would have been able to proceed with the trial.

The trial court reset the matter for November 1, 1996. However, Spruell had a conflict and the trial was continued until November 7, 1996. For some reason, the matter did not go forward on this date and the trial court rescheduled it for November 22, 1996.

On November 22, the State was prepared to try the case; however, a witness for Jernigan had moved out of state and Jernigan moved the court to compel the attendance of this witness. In addition, Jernigan had several pre-trial motions to address, including a motion to suppress. The State requested that the trial court consider the motions immediately before trial to minimize the inconvenience to the State’s witnesses. The trial court reset the matter for December 12, 1996.

On December 12, although Spruell was in court, Jernigan failed to attend. Accordingly, the trial court reset the matter to January 22, 1997 and ordered Jernigan to be present. On January 22, Jernigan announced not ready and the trial court rescheduled the matter for May 21,1997 at which time the trial actually commenced. This Court subsequently stayed the trial pending the outcome of this appeal.

Jernigan contends that the delay in this case must be attributed to the negligence of the State in bringing this case to trial. To the extent that any of the delay is unexplained, we construe the delay against the State. Daughenbaugh v. State, 225 Ga. App. 7, 9 (482 SE2d 517) (1997). In this case, the explanation for much of the delay is readily apparent. Much of the delay was attributable to Jernigan, although the State was also responsible for some delay. However, there is no evidence that any of the delay can be attributed “to a ‘serious abuse’ by means of a ‘deliberate attempt’ on the part of the State to delay trial to hamper the defense.” (Punctuation omitted.) Obiozor, supra at 525. “Therefore, although the delay attributable to the State is a negative factor, it is relatively benign.” Johnson v. State, supra at 418.

With regard to Jernigan’s assertion of her right to a speedy trial, we note that she failed to assert either her statutory or constitutional right to a speedy trial. Because a defendant may benefit by delaying a trial, this Court has recognized that a defendant has a responsibility to assert her right to a speedy trial. Collingsworth v. State, 224 Ga. App. 363, 366 (1) (480 SE2d 370) (1997). Accordingly, we construe Jernigan’s failure to assert her right to a speedy trial against her. Thomas v. State, 233 Ga. App. 224, 226 (2) (504 SE2d 59) (1998); Brown v. State, 264 Ga. 803, 805 (2) (450 SE2d 821) (1994).

As to the matter of prejudice, we weigh this factor most heavily in determining whether a defendant’s constitutional rights have been violated. Thomas, supra. Here, there is no evidence of a lengthy pretrial incarceration. In addition, the fact that Jernigan never filed a demand for a speedy trial suggests that she was not suffering anxiety or stress from the delay. Heinen v. State, 186 Ga. App. 373, 375 (d) (367 SE2d 275) (1988).

Jernigan claims prejudice because Michael Jernigan, her only witness, moved to California prior to trial. To carry her burden of showing prejudice due to the unavailability of this witness, Jernigan must show that the missing witness could supply material evidence for the defense. Torres v. State, 270 Ga. 79, 81 (2) (508 SE2d 171) (1998). “A missing witness whose testimony cannot help a defendant constitutes a flimsy basis on which to claim prejudice.” Id.

Jernigan claims that Michael Jernigan would have testified that he was with Jemigan the night of her arrest, that he had seen how much she had to drink, and that she could not have been drunk. At the hearing on Jemigan’s motion to suppress, three law enforcement officers who saw Jemigan on December 10, 1995 testified that she was visibly intoxicated. The arresting officer testified that Jernigan “had a hard time walking” and that she almost fell while attempting to sit down in the patrol car. The officer who first saw Jernigan and Michael Jernigan walking together towards their car testified that Michael Jernigan also was intoxicated to the point that he could not insert his car key into the door.

Decided May 11, 1999 —

Reconsideration denied July 13, 1999.

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

Joseph J. Drolet, Solicitor, Katherine Diamandis, Assistant Solicitor, for appellee.

Jernigan moved the trial court to compel Michael Jemigan’s attendance, claiming that his testimony was material to her defense. The trial court denied Jernigan’s motion, finding that Jernigan failed to prove that the witness’ testimony was material. Jernigan did not appeal this ruling.

Pretermitting whether Jernigan is bound by the trial court’s determination that Michael Jernigan’s testimony was not material, we find that the trial court did not abuse its discretion in concluding that Jernigan was not prejudiced by his absence. Given the evidence of Michael Jernigan’s own intoxication, the trial court could conclude that his testimony regarding how much Jemigan had to drink would not have assisted her case. “There must be more than a mere claim of prejudice; it must be shown, and this the accused did not do.” (Citation and punctuation omitted.) Heinen, supra at, 375-376.

We must keep in mind that juxtaposed against the defendant’s right to a speedy trial is society’s corresponding right to try the defendant. Collingsworth, supra. Balancing all four factors oí Barker, we conclude that the 17-month delay in this case did not violate Jer-nigan’s constitutional right to a speedy trial. Id.; Daughenhaugh, supra; Jackson, supra. Accordingly, the trial court did not abuse its discretion in denying her motion to dismiss.

Judgment affirmed.

McMurray, P. J., and Andrews, J, concur.