text:
    A02A0239.
    In re ESTATE OF PETERSON.
    (565 SE2d 524)
   Andrews, Presiding Judge.

Robert E. Lanyon appeals from the superior court’s order finding him disqualified from serving as executor of the will of Cletus W. Peterson, deceased. The court disqualified Lanyon applying Standard 30 of former State Bar Rule 4-102 (d) because he had a conflict of interest as the lawyer who prepared the will, and because he failed to follow the procedures necessary to create an exception to his disqualification as set forth in State Bar of Georgia Formal Advisory Opinion 91-1 (FAO 91-1). For the following reasons, we affirm.

The will appoints the decedent’s wife as executrix, but it is undisputed that she predeceased the decedent, and that Lanyon, recognized by name in the will as the decedent’s lawyer, was appointed in the will as successor executor in the event the decedent’s wife was unable to serve. Lanyon filed a petition in probate court citing his appointment as executor and seeking admission of the will to probate and issuance of letters testamentary. The decedent’s heirs filed a caveat objecting to Lanyon’s appointment as executor on the ground that he had a conflict of interest. By consent of the parties, an immediate appeal was taken to the superior court which found in favor of the caveat and disqualified Lanyon from serving as executor.

Lanyon contends he was excepted under FAO 91-1 from disqualification under Standard 30 and that the superior court erred in disqualifying him.

Standard 30 provides that: “Except with the written consent or written notice to his client after full disclosure a lawyer shall not accept or continue employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests.” FAO 91-1, issued by the Supreme Court of Georgia in September 1991, applies Standard 30 to the issue of whether it is ethically proper for a lawyer who prepared a will to serve as its executor and constitutes persuasive authority on the issue before this Court. Rolleston v. Munford, 201 Ga. App. 219, 220-221 (410 SE2d 801) (1991).

FAO 91-1 states in pertinent part:

The financial interests of an executor or trustee reasonably may affect an attorney’s independent professional judgment on behalf of the client. The conduct in question falls clearly within the coverage of Standard No. 30. Standard No. 30, however, provides exceptions for this type of conflict. These exceptions to a conflict of interest are the client’s written consent or written notice to the client after full disclosure.

The opinion recognizes that a client is free to appoint the lawyer hired to prepare the will as executor and that in some cases this may be in the client’s best interest. Nevertheless, the opinion warns that the risk that some lawyers may take advantage of being named fiduciary for the client “creates the need for restrictions that offer assurance that the naming of the lawyer as executor or trustee is the informed decision of the testator or settlor.” FAO 91-1. Accordingly, “[a]n attorney’s full disclosure is essential to the client’s informed decision and consent.” FAO 91-1.

Under FAO 91-1, full disclosure should include an explanation of the following:

1) All potential choices of executor or trustee, their relative abilities, competence, safety and integrity, and their fee structure; 2) The nature of the representation and service that will result if the client wishes to name the attorney as executor or trustee (i.e., what the exact role of the lawyer as fiduciary will be, what the lawyer’s fee structure will be as a lawyer/fiduciary, etc.); 3) The potential for the attorney executor or trustee hiring himself or herself or his or her firm to represent the estate or trust, and the fee arrangement anticipated; and 4) An explanation of the potential advantages to the client of seeking independent legal advice.

FAO 91-1. The opinion further provides that “[t]hese disclosures may be made orally or in writing, but the client’s consent or the attorney’s notice to the client should be in writing.” FAO 91-1. The opinion concludes that

it is our opinion that it is ethically permissible for testator or settlor to name as executor in a will or trustee of a trust the lawyer who has prepared the instrument when the lawyer: (a) does not promote himself or herself or consciously influence the client in the decision; (b) fully discloses the conflict as described above, and (c) either obtains client consent in some form of writing or notifies the client in writing.

FAO 91-1.

The superior court found that Lanyon did not promote himself or consciously influence his client’s decision to name him as executor, and that, as permitted under FAO 91-1, Lanyon fully disclosed orally to his client the potential conflict as described in the opinion. However, the court found that, in addition to full oral disclosure, Lanyon failed to either obtain his client’s consent in writing or give his client written notice as set forth in FAO 91-1. Lanyon does not claim he gave written notice to his client, but he argues that he obtained his client’s written consent when his client executed the will that recognized him as the client’s attorney and nominated him as the successor executor.

Decided May 9, 2002

Thomas M. Green, for appellant.

Jones, Cork & Miller, Hubert C. Lovein, Jr., Stone & Chapman, Claire C. Chapman, for appellee.

We find advisory opinion FAO 91-1 persuasive and apply its provisions to the issue before us. FAO 91-1 makes clear that the client’s written consent or written notice to the client after fall disclosure was necessary for Lanyon to be excepted from a disqualifying conflict of interest under Standard 30. The client’s execution of the will merely recognizing Lanyon as the client’s attorney and nominating him as executor of the will was not sufficient under FAO 91-1 to constitute the client’s written consent. Considering FAO 91-1 as a whole, and particularly in light of the opinion’s provision that “[a]n attorney’s full disclosure is essential to the client’s informed decision and consent,” we conclude that, if a client’s written consent (or a lawyer’s written notice to the client) does not include the required full disclosure as part of the writing, it must contain some recognition that the client’s decision and consent were made with knowledge of the potential conflict of interest. In other words, the required writing must at least acknowledge the disclosure essential to an informed decision and consent.

Because Lanyon failed to give written notice to or obtain written consent from his client, the trial court properly disqualified him from serving as executor of the will.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       The current rule adopted after the conduct at issue is Rule 1.7 of the Georgia Rules of Professional Conduct.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A02A0566.
    JARRIEL v. THE STATE.
    (565 SE2d 521)
   Ruffin, Judge.

A jury found Bryan Jarriel guilty of driving under the influence. In three enumerations of error, Jarriel challenges the sufficiency of the evidence. He also contends that the trial court erred in denying his motion to suppress. For reasons that follow, we affirm.

1. On appeal from a criminal conviction, Jarriel no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to support the jury’s verdict. We neither weigh the evidence nor assess witness credibility, but merely determine whether the evidence is sufficient to meet the standard set forth in Jackson v. Virginia.

Viewed in this manner, the evidence shows that at 3:30 a.m. on March 10, 2001, State Trooper Buzz Cromer received a report that a vehicle was parked in the Blairs’ front yard in Tattnall County. Cro-mer reached the scene in approximately 15 minutes, at which point he discovered Jarriel slouched over in a truck with his foot on the brake, the engine running, the headlights on, and the transmission in drive. After ascertaining that Jarriel was alive, but unconscious, Cromer sat Jarriel up. As Cromer did so, he “detected a very strong odor of alcoholic beverage about Mr. Jarriel.” Because Jarriel was unable to walk on his own, two police officers carried him to the back of a squad car where Jarriel evidently regained consciousness and was read his implied consent rights. Cromer subsequently administered a breath test using the Intoxilyzer 5000. The machine indicated that Jarriel had a blood alcohol content of 0.12, which is above the legal limit.

2. In three enumerations of error, Jarriel contends that the evidence was insufficient to support his conviction because the State failed to prove that his blood alcohol content was above the legal limit during the three-hour period after he ceased driving his truck. The homeowners who discovered Jarriel did not testify, and Jarriel contends that there was thus no evidence as to when he was last in control of his truck, precluding his conviction. We disagree.

Jarriel is correct that, under OCGA § 40-6-391 (a) (5), the State was required to prove that his blood alcohol content was 0.08 or greater within three hours of driving or being in actual physical control of his truck. What Jarriel fails to acknowledge is that such offense may be proved by circumstantial evidence, which need not exclude every inference and hypothesis except guilt, but only those reasonable inferences and hypotheses. Whether a hypothesis is reasonable is for the jury to decide.

Here, the evidence, although circumstantial, is sufficient. When police discovered Jarriel, he was passed out in the driver’s seat of his truck, with the engine running, in the Blairs’ front yard. At that time, his blood alcohol content was over the legal limit. The reasonable conclusion is that Jarriel was driving his truck while under the influence. If not, then Jarriel must have chosen to drive onto the Blairs’ yard, leave his truck running, and drink until he passed out. Evidently, the jury found the second scenario implausible, and we will not gainsay that finding.

Similarly, we are not troubled by the lack of direct evidence regarding the exact timing of the event. The evidence shows that police received the call regarding Jarriel at 3:30 a.m., and Cromer responded within 15 minutes. Although the Blairs did not testify, it is reasonable to assume that they called the police in response to Jar-riel driving onto their front yard. What Jarriel would have us believe is that he drove onto the Blairs’ yard sometime before 12:45 a.m. — three hours before Cromer first saw him behind the wheel of his truck — and that the Blairs just happened to wake up at 3:30 a.m., look out their window, and discover him in their front yard. Again, the jury was authorized to reject the second scenario. It follows that the evidence of Jarriel’s guilt was sufficient to sustain his conviction.

3. Jarriel also contends that the trial court erred in failing to suppress the results of his breath test because it was not performed in accordance with approved methods. Under OCGA § 40-6-392 (a) (1) (A), any chemical analysis, including breath tests, must be “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation” (GBI). During the motion to suppress, Jarriel tendered a memorandum from the Division of Forensic Sciences to “All Breath Testing Agencies” stating that:

Rules of the [GBI] . . . require a periodic check be made of each instrument performing breath alcohol tests to assure proper calibration of every breath testing device. . . . Presently, all Intoxilyzer 5000 instruments are checked quarterly by personnel assigned to the Implied Consent Section of the Division of Forensic Sciences. This quarterly check will [assure] compliance with the Rules cited.

Decided May 9, 2002.

Mitchell M. Shook, for appellant.

Wensley Hobby, Solicitor-General, for appellee.

Evidently, the Intoxilyzer 5000 had not been inspected since October 6, 2000, approximately five months before Jarriel was tested on the machine. According to Jarriel, because the machine had not been tested quarterly, the results of the test should have been suppressed. We disagree.

Initially, it is unclear that the memorandum Jarriel tendered constitutes a method approved by the GBI. Assuming, for the sake of argument, that it is such a method, we find no basis for reversal.

Although it appears that this is an issue of first impression, a similar argument has been made with respect to the GBI requirement that a testing officer observe a suspect for 20 minutes prior to administering a breath test. Rather than requiring exact compliance with GBI rules, we have upheld the admission of test results when the State has shown substantial compliance with the rules. Any deviation from such rule goes to the weight of the evidence, rather than its admissibility.

Here, the State proved substantial compliance with the requirement that the Intoxilyzer 5000 undergo periodic testing. The machine used on Jarriel had been tested on October 6, 2000, and on March 26, 2001. According to the inspection certificates, the machine functioned properly on both occasions. And Cromer, who is certified to administer breath tests, testified that the Intoxilyzer 5000 was functioning properly when he performed the test on Jarriel. Under these circumstances, we find no error in the trial court’s denial of Jarriel’s motion to suppress.

Judgment affirmed.

Pope, P. J., and Barnes, J, concur.

       See Vanorsdall v. State, 241 Ga. App. 871 (1) (528 SE2d 312) (2000).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Vanorsdall, supra.

       See OCGA § 40-6-391 (a) (5), which provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.”

       In Jarriel’s brief, he contends that the State must prove his blood alcohol concentration was 0.10 or greater. In 2001, however, OCGA § 40-6-391 (a) (5) was amended to reduce the legal limit to 0.08.

       See Veering v. State, 244 Ga. App. 30, 31 (1) (535 SE2d 4) (2000).

       See Pecina v. State, 274 Ga. 416, 419 (2) (554 SE2d 167) (2001).

       See id.; Johnson v. State, 194 Ga. App. 501-502 (1) (391 SE2d 132) (1990). See also Schoolfield v. State, 251 Ga. App. 52, 54 (1) (554 SE2d 181) (2001) (“[i]t is well settled that being found slumped over the steering wheel with the engine running constitutes” circumstantial evidence of driving under the influence).

       See Klink a State, 272 Ga. 605, 607 (2) (533 SE2d 92) (2000) (questioning whether requirement for 20-minute wait before testing constitutes an approved method).

       See Brunson v. State, 248 Ga. App. 402, 403 (1) (544 SE2d 217) (2001); Berkow v. State, 243 Ga. App. 698, 699-701 (534 SE2d 433) (2000) (physical precedent only).

       See id. at 701; Brunson, supra at 404.

        Berkow, supra at 701.

       See OCGA § 40-6-392 (a) (1) (A).


author: Andrews, Presiding Judge.

text:
    A02A0794.
    DUNAGAN v. THE STATE.
    (565 SE2d 526)
   Andrews, Presiding Judge.

Herman Dunagan, Jr. was found guilty by a jury of child molestation and first degree cruelty to a child. Finding no ground for reversal in the errors enumerated on appeal, we affirm the judgment of conviction entered on the guilty verdicts.

1. The evidence was sufficient to support the guilty verdicts. The victim, eight years old at the time of the charged offenses, testified that while Dunagan (known to her as Uncle Buck) was babysitting with her, he pulled down her pants and touched her vaginal area with his hand and unzipped his pants and touched his penis to her vaginal area. The child testified that Dunagan committed these acts despite the fact that she told him to stop and she was crying.

On appeal, Dunagan points out that the child gave inconsistent testimony. In interviews with a Department of Family & Children Services (DFACS) caseworker and a police investigator, the child initially denied the molestation and then gave two subsequent statements confirming that the molestation occurred but giving inconsistent accounts as to the manner in which it occurred.

Although the evidence showed that the child made inconsistent statements about the acts of molestation, the credibility of the child was for determination by the jury, which chose to believe the child’s statements that the charged acts . . . occurred. Cofield v. State, 216 Ga. App. 623, 625 (455 SE2d 342) (1995). This Court does not re-weigh the evidence or determine the credibility of witnesses, but considers only the sufficiency of the evidence. Id. The evidence was sufficient for a rational trier of fact to find [Dunagan] guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Havron v. State, 234 Ga. App. 413, 414 (1) (506 SE2d 421) (1998); OCGA §§ 16-5-70 (b); 16-6-4.

2. Dunagan claims the trial court erred by allowing a physician to testify for the State over objection that it was extremely unlikely the physical injuries found during examination of the child could have resulted from anything other than an intentional act of molestation. We agree it would have been erroneous to admit this testimony over a proper objection.

This testimony was given during the State’s case-in-chief to support allegations that Dunagan committed aggravated sexual battery and aggravated child molestation by inserting a foreign object into the child’s vagina. The physician testified that an examination of the child revealed physical injuries that were consistent with deep penetration of the child’s vagina by some means during the last year. It would have been proper to allow the physician to testify that the physical injuries were consistent with sexual molestation by vaginal penetration, but it improperly invaded the province of the jury to allow the physician to testify that the physical injuries showed it was likely the child had been sexually molested by vaginal penetration. Atkins v. State, 243 Ga. App. 489, 490-495 (533 SE2d 152) (2000); Gosnell v. State, 247 Ga. App. 508, 509-510 (544 SE2d 477) (2001).

However, no reversal is required in this case for two reasons. First, Dunagan did not make a proper objection to the testimony. He objected not on the basis that the testimony invaded the province of the jury but that it called for speculation by the physician. Since this was not a proper basis for excluding the testimony, the trial court did not err by denying the objection, and Dunagan failed to preserve the relevant issue for appellate review. Mack v. State, 251 Ga. App. 407, 409 (554 SE2d 542) (2001). Second, even if Dunagan made the proper objection and the trial court erroneously allowed the physician to testify that the physical injuries showed it was likely the child was molested by vaginal penetration, no harm could be demonstrated. After reviewing the evidence at the close of the State’s case-in-chief, the trial court granted Dunagan’s motion to dismiss the charges of aggravated sexual battery and aggravated child molestation which were based on allegations that Dunagan penetrated the child’s vagina with a foreign object. Since neither of the offenses on which Dunagan was found guilty involved an allegation that he penetrated the child’s vagina, it is highly probable that erroneous admission of the physician’s testimony did not contribute to the guilty verdicts. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

3. Dunagan contends the trial court erred by refusing to allow evidence to go out with the jury during deliberations.

During the trial, several documents from the DFACS case file on the child were admitted into evidence by the trial court on the basis that they may provide evidence exculpatory of Dunagan. The trial court granted the State’s “continuing witness” objection that these documents should not go out with the jury during deliberations because they would improperly provide “continuing testimony” to the jury.

In Georgia the “continuing witness” objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

Tibbs v. Tibbs, 257 Ga. 370-371 (359 SE2d 674) (1987). Under this rule, documents such as depositions, interrogatories and written confessions which have been read to the jury during trial are not allowed to go out with the jury during deliberations because if they are read and reread by the jury, this evidence would be given an unfair advantage over other oral testimony. Gabbard v. State, 233 Ga. App. 122, 124 (503 SE2d 347) (1998).

Dunagan points out that none of the DFACS documents were read to the jury, and one of the documents showed that in September 1997 the child had a hernia near her private area, her bottom was red and she was having nightmares and wetting the bed. Dunagan, who presented evidence that bed-wetting is sometimes characteristic of an abused child, contends it was error to prevent this document from going out with the jury because it tended to prove the child was sexually abused in 1997 (about two years prior to the allegations against him) and that this earlier abuse was the source of the physical injuries discovered by the physician who examined the child and testified for the State.

Even if the document at issue was not subject to the “continuing witness” objection and was erroneously kept from the jury during deliberations on this basis (see Dunagan v. Elder, 154 Ga. App. 728, 729 (270 SE2d 18) (1980)), we find no harm for the same reasons set forth in Division 2, supra. Dunagan claims the document was important to show that injuries to the child’s vagina were caused by sexual abuse in 1997 prior to allegations that he inserted a foreign object into the child’s vagina in 1999. When the trial court dismissed all the charges which were based on allegations that Dunagan inserted a foreign object into the child’s vagina, the document was no longer important for this purpose. Accordingly, even if the document retained some relevance for Dunagan’s defense, it is highly probable that preventing the document from going out with the jury during deliberations did not contribute to the guilty verdicts. Johnson, 238 Ga. at 61.

4. Finally, Dunagan claims the trial court erred by failing to release documents showing earlier child abuse from the child’s DFACS file which were critical to his defense.

Records concerning child abuse in a DFACS file are confidential. OCGA § 49-5-40 (b). However, the records may be obtained by petitioning the trial court to subpoena the records under the provisions of OCGA § 49-5-41 (a) (2) which states that reasonable access be provided to

Decided May 9, 2002

William D. Healan III, for appellant.

[a] court, by subpoena, upon its finding that access to such records may be necessary for determination of an issue before such court; provided, however, that the court shall examine such record in camera, unless the court determines that public disclosure of the information contained therein is necessary for the resolution of an issue then before it and the record is otherwise admissible under the rules of evidence.

Davidson v. State, 183 Ga. App‘. 557, 559 (359 SE2d 372) (1987). Pursuant to this Code section, the trial court conducted an in camera inspection of the child’s DFACS file and provided Dunagan with several documents from the file concerning earlier child abuse (see Division 3, supra) which the court determined might be exculpatory and relevant to Dunagan’s defense.

Dunagan claims the trial court failed to provide him with all of the exculpatory documents from the file, but bases this claim only on speculation that a thorough inspection of the file would surely have produced more relevant documents than the court found. The child’s entire DFACS file was sealed by the trial court after the in camera inspection and made a part of the record on appeal. Dunagan contends that this Court should review the entire file to determine if the trial court provided him with all the documents necessary for his defense.

This Court will not review an in camera inspection conducted by the trial court based on speculation that there might be additional material which should have been found and produced for the defense. Williams v. State, 251 Ga. 749, 789 (312 SE2d 40) (1983). The trial court’s discretionary ruling after an in camera inspection that all exculpatory material, if any, has been produced establishes that as a fact absent a countershowing. Barnes v. State, 157 Ga. App. 582, 586 (277 SE2d 916) (1981). The burden is on the defendant to show what was suppressed and how it is materially exculpatory. Id. at 586-589; Williams, 251 Ga. at 788-789. Dunagan has failed to satisfy this burden.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

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


author: Pope, Presiding Judge.

text:
    A02A0133.
    BINKLEY v. THE STATE.
    (566 SE2d 31)
   Pope, Presiding Judge.

Scott Jon Binkley was convicted of manufacturing marijuana but appeals denial of his motion to suppress the evidence that led to his conviction.

The evidence showed that while investigating another matter, Sergeant Meehen of the Lumpkin County Sheriff’s Office and State Trooper Van Scoten smelled the odor of burning marijuana near and possibly coming from Binkley’s home. The officers spoke to Binkley at his front door, told him why they knocked, and asked him to step outside, which he did. The officers smelled a strong odor of burnt marijuana coming from Binkley himself and noticed that he had red, glassy, and watery eyes. Trooper Van Scoten concluded that Binkley appeared to be under the influence of marijuana.

The officers asked for permission to search the home two or more times, but each time Binkley denied permission. They then explained that they were going to secure his residence and contact a K-9 unit as a preliminary step to obtaining a search warrant for the premises. They secured the residence by having all occupants — Binkley and his wife — step outside. Officer Meehen then went to his car to request a K-9 unit, leaving Van Scoten with the Binkleys. Van Scoten testified that he also told them that they were free to leave.

After Meehen returned and the officers again asked for but failed to receive permission to search the house, Binkley admitted that he had smoked some marijuana, that he had some form of marijuana in the house, and that he was going in the house to get it for them. When he went in the house, the officers followed him all the way to the marijuana. Van Scoten testified that Binkley’s actions implied that he had given permission to enter. But he also testified that under these circumstances, he does not allow a suspect to walk back into a house because he may gain access to a weapon or destroy evidence.

After entering the house, Binkley showed the officers burnt marijuana cigarettes in an ashtray, and they arrested him and took him to a patrol car. The officers then asked Mrs. Binkley for permission to search the rest of the house, which she admits she gave. She led Van Scoten to a closet containing a hydroponic growing system with growing marijuana.

Both Mr. and Mrs. Binkley admitted smoking marijuana that night. Binkley denied that the officers ever told him that he was free to leave or that he had a right to refuse consent to search.

The trial judge found that Binkley did not consent to allow the officers to enter the house but that there were exigent circumstances permitting a warrantless search in that Binkley could have disposed of evidence when he went back inside.

Our Supreme Court has explained that three principles should guide appellate interpretation of a trial court’s findings of fact made in connection with a motion to suppress evidence.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to [the] questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

Construing the evidence in favor of upholding the trial court shows that there was evidence to support the conclusion that the officers did not have consent to enter the premises when Binkley turned and reentered his home.

But there was evidence of exigent circumstances because Bink-ley could have destroyed evidence when he went inside. An officer may gain access justified by the Fourth Amendment “by obtaining a warrant, obtaining consent, or by the existence of exigent circumstances which require the officer to act immediately without warrant or consent.” State v. David, 269 Ga. 533, 535-536 (2) (501 SE2d 494) (1998). Exigent circumstances include those where the officer reasonably believes that such action is a necessary response on his part to an emergency situation. Coker v. State, 164 Ga. App. 493, 496 (5) (297 SE2d 68) (1982). Binkley smelled of marijuana, had red, glassy, and watery eyes, and admitted he smoked some marijuana and that there was some in the house. These facts gave probable cause to arrest Binkley on his doorstep. The trial court could have believed Van Scoten’s testimony that Binkley had been told that his house was being secured. When Binkley reentered his house under the circumstances without permission, it created the opportunity for him to destroy evidence. The court’s factual finding that there were exigent circumstances was authorized by the evidence and is binding unless clearly erroneous, which it was not. See, e.g., Anderson v. State, 193 Ga. App. 6, 8 (2) (387 SE2d 148) (1989).

Decided May 10, 2002

William S. Hardman, for appellant.

N. Stanley Gunter, District Attorney, William J. Langley, Assistant District Attorney, for appellee.

Finally, there was evidence to support that Mrs. Binkley consented to a search of the remainder of the premises.

Judgment affirmed.

Ruffin and Barnes, JJ., concur.


author: MlKELL, Judge.

text:
    A02A0207.
    NELSON v. THE STATE.
    (565 SE2d 551)
   MlKELL, Judge.

A jury convicted Everlee Nelson, Jr. of child molestation for sexually abusing the 11-year-old daughter of his girlfriend. The trial court denied his motion for new trial, and this appeal followed. Nelson contends that the trial court erred in admitting testimony under the Child Hearsay Statute, in allowing the victim’s videotaped statement to be played for the jury, in admitting similar transaction evidence, in requiring the victim’s mother to testify after she invoked her Fifth Amendment privilege against self-incrimination, and in permitting the state to impeach its own witness. Nelson further contends that the court erred when it denied his motion for a continuance, admitted his confession, and denied his motion for a directed verdict. Finally, Nelson assigns error to the court’s refusal to charge the jury on illegal detention and its denial of his motion for a new trial. We disagree and affirm Nelson’s conviction.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). So viewed, the record shows that at the time of the incident in question, the victim’s mother had been engaged in a romantic relationship with Nelson for approximately ten years. The 11-year-old victim, S. H., testified that her mother had instructed her to lock her bedroom door when she was home alone with Nelson. Nevertheless, on the night of March 12, 2000, S. H. left her bedroom to get a glass of water while her mother was not home. S. H. changed into jeans and a shirt before going to the kitchen. She encountered Nelson on her way back to her bedroom. According to S. H., Nelson offered her $2 to perform sexual favors, and she refused. Then, he pushed her onto the couch. S. H. testified that Nelson held her arms above her head with one hand and pulled her jeans and underwear down with the other. Nelson then removed his shorts and exposed his penis. He put a sheet over S. H.’s face to muffle her cries and attempted to penetrate her vagina with his penis. Nelson was forced to stop because S. H.’s mother returned home and entered the room. According to S. H., after her mother asked who was there, Nelson immediately told her, “I didn’t do nothing. I didn’t do nothing.”

The victim’s mother took her daughter for a drive, during which the child described what had happened. When they returned home, Nelson had disabled the telephone, so that S. H.’s mother could not call the police. The next morning, S. H. and her mother went to the Department of Family & Children Services, where S. H. told investigator Debra Roberts about Nelson’s actions. Roberts accompanied S. H. and her mother to a local medical clinic, where S. H. was examined. Finally, they proceeded to the LaGrange Police Department. S. H. told Detective Dale Strickland what Nelson had done to her. S. H.’s mother described to the detective what she saw and heard.

On March 15, 2000, the police were notified that Nelson had checked himself into a hospital because he claimed to be considering suicide. When Nelson was discharged from the hospital, Detective Strickland took him into police custody. After waiving his Miranda rights, Nelson gave a statement to the police. He told the detective that he drank alcohol and smoked crack on the day of the attack. Nelson claimed that he remembered being downstairs when S. H. went to the kitchen and when S. H.’s mother returned home, but that he did not recall what happened during the time in between. He told the detective that he “drew a blank.”

At trial, evidence was introduced to show that Nelson had broken into S. H.’s bedroom one year prior to the attack. S. H. testified that Nelson tried to touch her “private” then, but she awoke and told him to leave her room. Additionally, similar transaction evidence was presented when S. H.’s cousin A. S. testified that in May 1996, when she was 11 years old, Nelson made sexual advances toward her. According to A. S., she was riding in a car driven by Nelson and was holding a baby in her lap when Nelson reached over and rubbed her inner thigh until she pushed his hand away. According to A. S., Nelson told her not to tell anyone what he had done. A. S. reported the behavior to her mother, who filed a police report against Nelson.

1. On appeal, Nelson first argues that the trial court erred in admitting the testimony of Roberts and Detective Strickland under the Child Hearsay Statute, OCGA § 24-3-16. Nelson contends that the state failed to show sufficient indicia of reliability before the testimony describing what S. H. told the witnesses was admitted. We find no error.

Under the Child Hearsay Statute, a statement made by a child under the age of 14 that describes sexual contact or physical abuse by another is admissible in evidence by the testimony of the person to whom the statement was made “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.” OCGA § 24-3-16. As a preliminary matter, we note that “[t]he trial court has broad discretion in determining the admissibility of child hearsay evidence.” (Punctuation omitted.) Woolums v. State, 247 Ga. App. 306 (1) (540 SE2d 655) (2000), citing Right v. State, 242 Ga. App. 13, 15-16 (1) (528 SE2d 542) (2000). In this case, S. H. testified at trial; therefore, only the second prong of the statute is at issue.

It is well settled that the trial court need not make an express finding with respect to the reliability of a child’s hearsay statement prior to its admission. Crider v. State, 246 Ga. App. 765, 766-767 (1) (542 SE2d 163) (2000); Gregg v. State, 201 Ga. App. 238, 240 (3) (a) (411 SE2d 65) (1991). “A finding of reliability ... is not a condition precedent to the admissibility of the statement. The question is whether, after both parties have rested, the record contains evidence which would support a finding of reliability.” Crider, supra at 767 (1). Thus, to the extent that Nelson argues that the court erred in failing to determine the reliability of S. H.’s statements to Roberts and Detective Strickland prior to allowing their testimony, we reject his argument. Further, we conclude that the record contains evidence supporting findings of reliability in connection with the testimony of Roberts and Detective Strickland. See Croy v. State, 247 Ga. App. 654, 656 (2) (545 SE2d 80) (2001).

The factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. . . . These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.

(Emphasis omitted.) Gregg, supra at 240-241 (3) (b).

First, we find sufficient indicia of reliability surrounding S. H.’s out-of-court statement to Detective Strickland. At trial, the detective testified regarding what S. H. told him about Nelson’s actions. Additionally, the state played the videotape of Detective Strickland’s interview with S. H. for the jury. At a pretrial hearing, Detective Strickland testified that he interviewed S. H. on the morning immediately following the incident; that S. H. was 11 years old at the time and understood the difference between the truth and a lie; that the statement was given in a comfortable setting in the presence of the victim’s mother; that the questions he asked were not leading or suggestive of a desired answer; that S. H.’s statement was freely and voluntarily given; and that S. H. was not threatened or promised anything in exchange for her statement. The court properly found that the statement to Detective Strickland was sufficiently reliable.

Next, we consider Nelson’s argument that the court erred in admitting hearsay testimony by Roberts. The transcript shows that Roberts’ only testimony regarding S. H.’s statement was the following:

She told me — [S. H.] told me that her mother had gone to take her sister to the grandmother’s house and she was at home and she got thirsty and so she came downstairs to get something to drink. As she was going back upstairs she stated that [Nelson] grabbed her and pulled her and threw her on the couch. He pulled her underclothes down and he tried to insert his penis into her, but her mother came in the door at the time that he was trying to do that.

Every event described in the above testimony was testified to by the victim herself in much greater detail, and the victim and Roberts were subject to cross-examination. Accordingly, we find no error in the court’s admission of Roberts’ brief summary of the child’s statement.

[A]ppellant had every conceivable opportunity to examine and cross-examine the child in the presence of the jury, regarding the child’s memory of and the circumstances surrounding [her] making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the child’s demeanor in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to appellant’s right of fair trial, and provided appellant full opportunity for confrontation.

Gregg, supra at 241 (3) (c).

2. In a related error, Nelson contends that the trial court erred in allowing the videotape of S. H.’s interview to be played for the jury. Nelson argues that the state failed to lay a proper foundation for the admission of the tape; however, he does not explain on appeal what the proper foundation should have been, nor did he elaborate when he objected at trial.

We have held that “[objection on the ground of a lack of proper foundation without stating what the proper foundation should be is insufficient and presents nothing for consideration on appeal.” (Citations and punctuation omitted.) Robinson v. State, 175 Ga. App. 845, 846 (2) (334 SE2d 886) (1985). Accord Adams v. State, 264 Ga. 71, 73-74 (4) (440 SE2d 639) (1994). Therefore, this error presents nothing for our review.

3. Nelson argues that the trial court erred in admitting similar transaction evidence against him, because his alleged fondling of A. S. was not sufficiently similar to the offense for which he was being tried. The record shows that the trial court conducted a pretrial hearing and determined that the testimony of A. S. regarding Nelson’s fondling of her inner thigh was admissible. We find no abuse of discretion.

In order for similar transaction evidence to be admissible, the State must show (1) that it seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility, (2) that there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) that there is a sufficient connection or similarity between the independent offense or act . and the crime charged so that proof of the former tends to prove the latter.

Frady v. State, 245 Ga. App. 832, 834-835 (4) (538 SE2d 893) (2000), citing Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

The trial court properly admitted the similar transaction evidence. First, the state offered A. S.’s testimony for the appropriate purpose of showing Nelson’s bent of mind and course of conduct. Second, contrary to Nelson’s argument, A. S.’s testimony provided sufficient evidence that Nelson fondled her inner thigh. See Hardeman v. State, 247 Ga. App. 503, 506-507 (4) (a) (544 SE2d 481) (2001). Finally, the two acts were sufficiently similar. “The rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses. . . . Acts involving the sexual molestation of children or teenagers, regardless of the type of acts, are of sufficient similarity to be admissible.” (Footnotes omitted.) Id. at 506 (4) (a).

4. Next, Nelson contends that the court erred in requiring the victim’s mother to testify. The transcript shows that after she was sworn in as a witness, the victim’s mother asked the trial court if she could assert her Fifth Amendment privilege against self-incrimination. The court informed her that she was required to testify. Because Nelson failed to object to the court’s ruling, this alleged error presents nothing for our review. “As this is a court for the correction of error of law, we will not consider any issues raised on appeal that were not raised and preserved in the trial court.” O’Brien v. State, 242 Ga. App. 344, 347 (3) (529 SE2d 657) (2000). Furthermore, Nelson lacks standing to assert the victim’s mother’s privilege against self-incrimination. Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691) (1990).

5. Nelson argues that the trial court erred in allowing the state to impeach its own witness. At trial, the victim’s mother testified that she did not recall seeing Nelson with his pants down on the night in question. The state pointed out that the mother gave a statement to the police that she had seen Nelson with his pants down on top of S. H. and played a tape of her statement for the jury. Nelson objected on foundation grounds and because the witness had not been declared hostile. The transcript reveals no objection to the state impeaching its own witness. Therefore, this error presents nothing for our review. O’Brien, supra.

Additionally, even if Nelson had objected, our conclusion would be the same. “If, at the time of the questioning, a party has knowledge of a prior statement by one of his witnesses which contradicts testimony that witness has just given, that party has been sufficiently entrapped so that he may impeach his witness by use of the prior inconsistent statement.” Davis v. State, 249 Ga. 309, 314 (3) (290 SE2d 273) (1982). Thus, the trial court properly allowed the state to impeach the victim’s mother with her prior inconsistent statement.

6. We reject Nelson’s argument that the trial court erred in denying his request for a continuance in order for the defense to locate a witness. The witness, Bubba Williams, had not been subpoenaed by Nelson. In order for a continuance to be granted due to the absence of a witness, OCGA § 17-8-25 requires, among other things, a showing that the witness has been subpoenaed. Because Nelson failed to subpoena Williams, “there is no basis for overruling the trial court’s discretion in denying the motion for continuance.” Griggs v. State, 208 Ga. App. 768, 770 (2) (432 SE2d 591) (1993).

7. Next, Nelson argues that the trial court erred in admitting his statement to the police because it was not freely and voluntarily given. We disagree.

The standard for determining the admissibility of a defendant’s confession is the preponderance of the evidence. To determine whether a confession was voluntarily made, a trial court must consider the totality of the circumstances, and unless clearly erroneous, a trial court’s credibility determinations and factual findings relating to the admissibility of a confession must be upheld on appeal.

(Footnotes omitted.) Smiley v. State, 271 Ga. 734, 735-736 (4) (524 SE2d 234) (1999).

We conclude that the trial court’s determination was not clearly erroneous. The record shows that prior to admitting Nelson’s statement, the court conducted a Jackson-Denno hearing to determine if the statement was voluntarily given. Detective Strickland testified that he interviewed Nelson two days after the attack; that he advised Nelson of his constitutional rights; that Nelson said that he understood his rights and wanted to give a statement; -that Nelson appeared to understand his rights; that Nelson was not coerced or given a promise that he would receive a benefit in return for the statement; that Nelson appeared calm and not under the influence of any intoxicant; and that Nelson was informed of the charges against him.

Nelson contends that the statement was taken while he was in the hospital after threatening to commit suicide; however, the record shows that it was given at the police station after Nelson’s arrest. Additionally, in his appellate brief, Nelson states that he was “exasperated” when he gave the statement and that he had been under the influence of drugs. But the only evidence of Nelson’s drug use in the record was that he smoked crack and drank alcohol on the day that he molested S. H., which was two days before he spoke to the police.

The evidence in the record supports the trial court’s determination that Nelson’s statement was voluntarily given. Accordingly, the court did not err. See Smiley, supra.

8. Nelson assigns error to the trial court’s denial of his motion for a directed verdict. After reviewing the evidence in the light most favorable to the verdict, we conclude that the evidence was sufficient to authorize the jury to find Nelson guilty of child molestation. Jack son v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “Since an appellate court reviewing a trial court’s denial of a motion for directed verdict applies the ‘sufficiency of the evidence’ test of Jackson v. Virginia, supra, we also affirm the trial court’s denial of appellant’s motion for directed verdict of acquittal.” Moore v. State, 273 Ga. 11, 12 (1) (537 SE2d 334) (2000), citing Jordan v. State, 272 Ga. 395 (1) (530 SE2d 192) (2000).

9. Next, Nelson alleges that the court erred in refusing to instruct the jury on the concept of illegal detention; however, he does not explain how the court’s decision amounted to reversible error. The only argument Nelson provides is that “[he] had the right to have the jury charge on illegal detention given with regards to his alleged confession.” Court of Appeals Rule 27 (c) (2) provides that any enumeration of error which is not supported by citation of authority or argument shall be deemed abandoned. While we certainly could deem this error to have been abandoned, we will briefly address its merits.

The issue of illegal detention was not raised by the evidence in this case. Thus, the giving of Nelson’s charge, as submitted, could have misled or confused the jury. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992). See also Snoke v. State, 237 Ga. App. 686, 690 (5) (516 SE2d 541) (1999); Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (2) (a) (441 SE2d 453) (1994); Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991). Accordingly, Nelson’s contention is without merit.

10. Finally, Nelson argues that the court erred in denying his motion for new trial on the ground of ineffective assistance of counsel. We disagree.

In order to establish ineffective assistance of counsel, Nelson must show that his trial counsel’s performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994). Significantly, “[a] reviewing court need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order.” (Citations, punctuation and emphasis omitted.) Rogers v. State, 195 Ga. App. 446, 447 (2) (394 SE2d 116) (1990). Nelson has provided a list of alleged deficiencies in his trial counsel’s performance; however, he has not demonstrated that he was prejudiced. It is well settled that “[i]n order to prove the defense has been prejudiced, defendant must show there is a reasonable probability that the result of the proceedings would have been different but for counsel’s unprofessional deficiencies.” (Citation and punctuation omitted.) Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989). Because Nelson has failed to make this requisite showing, we affirm the trial court’s denial of his motion for new trial.

Decided May 10, 2002.

John D. Rasnick, for appellant.

Peter J. Skandalakis, District Attorney, Charles P. Boring, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Mikell, Judge.

text:
    A02A0284.
    INSURANCE AGENCY OF GLYNN COUNTY, INC. v. ATLANTA CASUALTY COMPANY.
    (565 SE2d 547)
   Mikell, Judge.

Insurance Agency of Glynn County, Inc. d/b/a Darien Insurance Agency (“Darien”) appeals the trial court’s order denying its motion for summary judgment and granting Atlanta Casualty Company’s (“Atlanta Casualty”) motion for summary judgment in this declaratory judgment action. We affirm.

In 1995, Redolfo Villa Chavarria (“Redolfo”) utilized Darien to obtain an insurance policy from Atlanta Casualty. The policy covered a 1974 truck that Redolfo’s wife, Patricia Ward Chavarria, did not drive. Redolfo therefore executed a “Named Driver Exclusion Agreement” excluding her from coverage under the policy. On August 11, 1997, Chavarria, who was estranged from her husband, went to Darien to obtain coverage for a 1992 Hyundai. At the agency, Chavarria dealt with employee Ruth Dinkins. Dinkins prepared a change endorsement to add the Hyundai to Redolfo’s policy with Atlanta Casualty. However, Chavarria was not added as a driver, leaving the “Named Driver Exclusion Agreement” in full force and effect. Chavarria simply signed Redolfo’s name to the change endorsement. Dinkins deposed that she was aware that she made a mistake in not listing Chavarria as an “additional operator” on the change endorsement.

On May 1, 1998, Chavarria was involved in a collision while driving the Hyundai. She was sued for damages and demanded that Atlanta Casualty defend her. Atlanta Casualty filed a declaratory judgment action against Chavarria and the plaintiffs in the underlying litigation, asserting that Chavarria was excluded from coverage under Redolfo’s policy. Chavarria filed a third-party complaint against Darien, contending that either through negligence or a mutual mistake, the agency added the Hyundai to Redolfo’s policy instead of creating a new policy listing her as the insured. Darien moved for summary judgment, seeking to have the policy reformed to list Chavarria as an insured. Atlanta Casualty filed a cross-motion for summary judgment on the basis of the named driver exclusion. Atlanta Casualty also asserted that Darien, which was not a party to the policy, lacked standing to seek reformation, and that the mistake at issue was a unilateral one on the part of Darien’s employee. The trial court granted Atlanta Casualty’s motion and denied Darien’s motion, ruling, inter alia, that Darien lacked standing to seek reformation. We agree.

1. Whether an insurance agency may seek reformation of an insurance policy is a question of first impression for our appellate courts. Reformation of a contract is an equitable remedy for correcting an instrument to make it express the true intention of the parties, where from some cause, such as fraud, accident, or mistake, it does not express such intention. As a general rule, “Reformation of written instruments may be had by the immediate parties thereto and by those standing in privity with them, such as their successors. However, a person not a party or [a] privy to the transaction in question, even a person with a substantial interest therein, may not maintain the action.” In addition, OCGA § 23-2-34 provides that “[e]quity will grant relief as between the original parties or their privies in law, in fact, or in estate. . . .” “Privies” have been defined as “all persons who are represented by the parties and claim under them, all who are in privity with the parties; the term privity denoting mutual or successive relationship to the same rights of property.” In accordance with this definition, Darien does not stand in privity with the parties to the insurance policy. As such, it lacks standing to seek equitable reformation.

Darien argues that it has standing to seek reformation pursuant to OCGA § 10-6-82 (5), which states: “[generally, an agent shall have no right of action on contracts made for his principal. . . [except i]n cases of agency coupled with an interest in the agent, known to the party contracting with him.” The trial court ruled that for purposes of the transaction at issue, Darien acted as an independent contractor, and not as Atlanta Casualty’s agent. Generally, independent insur-anee agents or brokers are considered the agent of the insured, not the insurer, although in many cases, the nature of the relationship between the parties has been deemed a jury question.

Decided May 10, 2002

Brennan & Wasden, Wiley A. Wasden III, Elizabeth A. White, for appellant.

In the matter before us, however, it is unnecessary to ascertain the nature of the relationship between Darien and Atlanta Casualty. That is because even if Darien was Atlanta Casualty’s agent, the agency would not be entitled to seek reformation of the policy under OCGA § 10-6-82 (5). That Code section has been utilized to give an insurance agent the right to sue the insured to collect unpaid premiums. However, an agent’s right to sue for unpaid premiums does not equate with standing to sue for reformation. The latter requires privity of contract, which is absent in this case.

Our ruling is in accord with other jurisdictions that have considered this issue. In Biondo v. Ridgemont Ins. Agency, the Michigan Court of Appeals held that an insurance agency that failed to notify the carrier of a change in coverage requested by the insured lacked standing to seek reformation of the insured’s theft policy. Similarly, in Nat. American Ins. Co. &c. v. Continental Western Ins. Co., the Nebraska Supreme Court ruled that as a stranger to the contract, one insurer could not seek to reform a second carrier’s policy with its insured. That court observed that “the right to reformation belongs solely to the contracting parties, their assignees, or their intended beneficiaries.” Darien has not asserted that it has standing to sue as a third-party beneficiary of Redolfo’s insurance policy under OCGA § 9-2-20 (b). It follows that Darien’s motion for summary judgment was properly denied.

2. Darien has not challenged the validity of the named driver exclusion in Redolfo’s policy. Therefore, the grant of summary judgment to Atlanta Casualty on the basis of the exclusion stands affirmed.

Judgment affirmed.

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

Brennan, Harris & Rominger, Richard A. Rominger, Edward R. Stabell III, Kristine B. Shehane, for appellee.

        Deck v. Shields, 195 Ga. 697, 701 (25 SE2d 514) (1943); Lee v. American Central Ins. Co., 241 Ga. App. 650, 652 (4) (530 SE2d 727) (1999); OCGA § 23-2-25.

       (Footnotes omitted.) 76 CJS, Reformation of Instruments, § 49 (1994).

       See, e.g., Yeazel v. Burger King Corp., 241 Ga. App. 90, 95 (2) (526 SE2d 112) (1999).

       (Citations and punctuation omitted.) Bennett v. Cotton, 244 Ga. App. 784, 786 (1) (536 SE2d 802) (2000).

        European Bakers v. Holman, 177 Ga. App. 172, 173-174 (2) (338 SE2d 702) (1985).

        Stevens v. Hunt, 61 Ga. App. 265, 269 (6 SE2d 591) (1939); see also Sheriff v. Moore, 105 Ga. App. 833 (125 SE2d 729) (1962).

       104 Mich. App. 209, 212-213 (304 NW2d 534) (1981).

       243 Neb. 766 (502 NW2d 817) (1993).

       Id. at 776.


text:
    A02A0419.
    SHAMSUDDEEN v. THE STATE.
    (565 SE2d 544)
   Ruffin, Judge.

A jury found Abdusaboor Shamsuddeen guilty of one count of aggravated sexual battery and one count of child molestation. Sham-suddeen appeals, contending the trial court erred in admitting the victim’s prior, consistent statement, instructing the jury, and failing to merge his convictions. Shamsuddeen also asserts that he received ineffective assistance of trial counsel. For reasons that follow, we affirm the judgment but vacate the sentence and remand the case to the trial court.

Viewed favorably to support the jury’s verdict, the evidence shows that on the weekend of April 17, 1999, the 14-year-old victim spent the night with some girlfriends. The next day, the victim was lying down on the sofa. Shamsuddeen, who was sitting on the sofa, began rubbing the victim’s stomach. According to the victim, he then put his hand in her pants, underneath her underwear, and put his finger inside her vagina. Although the victim told Shamsuddeen, “no,” he did not stop until his niece, who was a friend of the victim’s, entered the room.

A week later, the victim told her mother about the incident. The police were notified. On April 26, 1999, Phyllis Marstellar, an investigator with the Department of Family & Children Services, interviewed the victim at the request of the police. Over Shamsuddeen’s objection, Marstellar was permitted to testify about what the victim told her during the interview.

1. On appeal, Shamsuddeen contends that the trial court erred in admitting the victim’s prior consistent statement. A prior consistent statement is properly admitted “ ‘as substantive evidence when the veracity of the witness’s trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination.’ ” “[A] witness’s veracity is placed in issue . . . only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” Here, Shamsuddeen argues that the victim’s veracity was never placed in issue. We disagree.

During his cross-examination of the victim, Shamsuddeen questioned her about her delay in reporting the incident, as well as her drug and alcohol use the weekend the crime took place. Then, in closing, he argued to jurors that the victim had been under the influence, and they could not “place any credence in” her testimony. Thus, it is evident that Shamsuddeen raised the issue of the victim’s veracity, and we find no error in the trial court’s admission of the prior consistent statement.

2. Shamsuddeen also maintains that the trial court erred in failing to merge, for sentencing purposes, his convictions of child molestation and aggravated sexual battery. We agree.

“ ‘Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all of the facts used to prove the other.’ ” “If the State uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact.” Here, the victim testified as follows:

Q: And what did [Shamsuddeen] do with his hand?
A: He just placed it up under my pants.
Q: Did you have on underwear?
A: Yes, sir.
Q: Did his hand go underneath your underwear?
A: Yes, sir.
Q: What part of your body did he touch?
A: My vagina.
Q: Okay. Did he touch you with his fingers?
A: Yes, sir.
Q: Did he put his fingers inside the lip area of your vagina?
A: Yes, sir.

This was the only evidence presented regarding Shamsuddeen’s contact with the victim. Based on this testimony, it is evident that only one incident took place. Nonetheless, Shamsuddeen was charged with two crimes — aggravated sexual battery and child molestation. While it was proper to prosecute Shamsuddeen for both crimes, the trial court erred in failing to merge the offenses for sentencing purposes.

The case cited by the State, Seidenfaden v. State, does not require a different result. In that case, the defendant was charged with child molestation “by touching, rubbing, and fondling the buttocks, breasts, chest, vagina, and vaginal area of the child.” The defendant also was charged with aggravated sexual battery for penetrating the child’s vagina with his finger. We found no merger because, in that case, the convictions were supported by separate facts. Here, there are no such separate facts. There is no evidence that Shamsuddeen rubbed the victim’s chest or buttocks. And the only evidence that he touched the victim’s vagina was in connection with his penetration of the vagina. Under these circumstances, the offenses merged as a matter of fact, and the trial court erred in concluding otherwise. Accordingly, the sentence is vacated, and the case is remanded for resentencing.

3. Shamsuddeen asserts that the trial court erred in instructing the jury that, “[w]hen a defense is raised by the evidence, the burden is on the State to negate or disprove it beyond a reasonable doubt.” According to Shamsuddeen, this instruction led jurors to believe that the State was not required to prove his guilt unless he presented a defense. This assertion lacks merit.

“ ‘It is a fundamental rule that jury instructions must be considered as a whole in determining whether the charge contained error.’ ” Here, the trial court charged the jury as follows:

This Defendant is presumed to be innocent until proven guilty. The Defendant enters upon the trial of the case with a presumption of innocence in his favor. This presumption remains with the Defendant until it is overcome by the State with evidence which is sufficient to convince you beyond a reasonable doubt that the Defendant is guilty of the offense charged. No person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt. The burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. There is no burden of proof upon the Defendant whatever, and the burden never shifts to the Defendant to prove innocence. When a defense is raised by the evidence, the burden is on the State to negate or disprove it beyond a reasonable doubt.

Decided May 10, 2002.

Harvey & McCormack, Walter B. Harvey, for appellant.

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

The trial court’s entire instruction shows that the court informed jurors that the State bore the burden of proving Shamsuddeen’s guilt beyond a reasonable doubt. And we fail to see how the trial court’s subsequent instruction on Shamsuddeen’s defense, although unnecessary, abrogated the previous instruction on the State’s general burden of proof. It follows that this alleged error presents no basis for reversal.

4. Finally, Shamsuddeen contends that he received ineffective assistance of trial counsel. Shamsuddeen states — and the State concedes — that this appeal is his first opportunity to raise his ineffectiveness claim. “‘Generally, when the appeal presents the first opportunity to raise an ineffective assistance claim, we remand the case to the trial court for an evidentiary hearing on the issue.’ ” Accordingly, we remand the case to the trial court for a hearing on Shamsuddeen’s ineffectiveness claim.

Judgment affirmed.

Sentence vacated and case remanded. Pope, P. J., and Barnes, J., concur.

       Shamsuddeen was acquitted of a second charge of child molestation.

        Robinson v. State, 246 Ga. App. 576, 581-582 (5) (541 SE2d 660) (2000).

        Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998).

       See Powell v. State, 271 Ga. 575, 576 (2) (522 SE2d 656) (1999).

        Seidenfaden v. State, 249 Ga. App. 314, 319 (4) (547 SE2d 578) (2001).

       (Punctuation omitted.) Jimmerson v. State, 190 Ga. App. 759, 762 (4) (380 SE2d 65) (1989).

       Although Marstellar also testified regarding the incident, her testimony paralleled that of the victim.

       See id.

       Supra.

       (Punctuation omitted.) Id. at 319 (4).

       See id.

       See id.

        Moore v. State, 246 Ga. App. 163, 168 (8) (a) (539 SE2d 851) (2000).

       Indeed, if Shamsuddeen had presented an affirmative defense, the trial court would have been required to give a requested charge like the one at issue, and failure to do so would constitute reversible error. See Palmer v. State, 247 Ga. App. 586-587 (1) (544 SE2d 215) (2001). Here, however, Shamsuddeen did not present an affirmative defense. See Carlson v. State, 240 Ga. App. 589, 591 (3) (524 SE2d 283) (1999) (“Affirmative defenses are those in which the defendant admits doing the act charged but seeks to justify, excuse, or mitigate his conduct.”).

        Wiley v. State, 250 Ga. App. 731, 735 (3) (552 SE2d 906) (2001).

       See id.


text:
    A02A0535.
    GEARIN v. THE STATE.
    (565 SE2d 540)
   Mikell, Judge.

A Barrow County jury convicted Donald Memory Gearin of aggravated child molestation, aggravated sexual battery, two counts of child molestation, and first degree cruelty to children. Gearin was sentenced to twenty years, ten of which he was ordered to serve in confinement, with the remainder on probation. On appeal, Gearin argues that the evidence was insufficient to support his conviction on each offense and that venue was improper in Barrow County. We affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” Furthermore, “an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.”

Construed in favor of the verdict, the evidence shows that the victim, D. G., was five years old at the time of the incident. D. G. testified that when she last saw her grandfather, the defendant, they were in the back of his van, and Gearin pulled her dress up, got on top of her, and touched her bottom with his hands. There was evidence that D. G. called both her vagina and rear end her bottom because she had not yet been explained the difference between the two. D. G. testified that it hurt when he touched her and that she was screaming, hollering, and kicking.

On cross-examination, in answering “yes” to questions posed by defense counsel, D. G. also testified that she was playing in the back of Gearin’s van; that he told her to come to the front seat so that she would not get hurt; that when she did not come to the front seat, he grabbed her arm and leg and picked her up by the bottom and fell out of his seat toward her; that that is when she got hurt; that Gearin used a rag to wipe blood from her leg; and that she told him he hurt her and he apologized. Also, D. G. testified that because of previous accidents and injuries, she was scared to tell her mother that this was an accident because she did not want to disappoint her or get her into trouble.

April Gearin, D. G.’s mother, testified that on March 6, 1995, Gearin stopped by and asked if D. G. could ride with him to pick up a seat from a car repair shop. April told Gearin that D. G. could go but told D. G., who was wearing a bathing suit at the time, to change clothes. D. G. changed into a white dress with pink flowers on it. D. G. and Gearin were gone for approximately 30 minutes, and when D. G. returned, she exited Gearin’s van and walked directly into the house. April noticed that D. G.’s dress was dirty. Gearin explained that D. G.’s dress was dirty because she had been running around in his van. Gearin mentioned nothing about D. G. injuring herself while in his van.

After Gearin left, April testified that she noticed that D. G. was acting like something was wrong. When April asked if anything was wrong, D. G. said no. When April inquired again, D. G. asked if she would get into trouble, which alarmed April. April then told D. G., “No, you won’t get into trouble, [D. G.] If something is wrong, you need to tell me,” and D. G. replied, “there ain’t nothing wrong.” They went back outside and sat on the porch, where April noticed blood in the crotch of D. G.’s bathing suit. April also saw blood on the porch and on the kitchen floor. When April questioned D. G. again, D. G. said there was glass and that Gearin, whom D. G. called “Poppa,” touched her down there and she pointed to her vagina. April called D. G.’s doctor and was told to take D. G. to the hospital, which she did.

Nurse June Hawkins, who prepared D. G. for her examination at the hospital, testified that when she helped D. G. to undress, she saw that D. G.’s panties were full of blood in the crotch. Dr. Carry Perry, who examined D. G., testified that she asked D. G. if various body parts hurt. The only body part that D. G. indicated was hurt was her bottom. Dr. Perry asked, “Did anyone touch you,” and D. G. replied, “no.” Dr. Perry then asked, “Well, why does your bottom hurt,” and D. G. said it hurt because “Poppa touched me.”

Because of her tender age, D. G. was anesthetized and examined in the operating room. Dr. Perry found a small laceration inside of D. G.’s vagina, another small laceration on the bottom of D. G.’s rectum, and light bruising around the area between the vagina and the rectum. The vaginal laceration was approximately a centimeter long and was not visible upon external examination. The rectal laceration was only visible upon Dr. Perry’s separation of D. G.’s buttocks. D. G.’s hymen was not intact, but Dr. Perry testified that this finding was not unusual for a normal, active, small child and could have resulted from everyday play. Dr. Perry opined that D. G.’s wounds were not consistent with a fall or straddle injury, but could be consistent with a fingernail scratch.

Sergeant Lewis Rusgrove of the Barrow County Sheriff’s Office investigated the incident. He testified that he interviewed Gearin at the sheriff’s office after advising him of the subject of the interview and reading him his rights. Gearin’s tape-recorded statement was played for the jury. Gearin initially stated that as he drove down the road, D. G. was playing in the back of his van. She fell, and because she began to cry, Gearin stopped on the side of the road. When he picked her up, he saw blood on her legs which he tried to wipe off. Later in the interview, Gearin stated that he may have accidentally put his finger into D. G.’s vagina when he picked her up. Eventually Gearin admitted that he did accidentally put his finger into her vagina, but that he pulled it out immediately, and that D. G. yelled when it happened. The following colloquy occurred after Gearin’s admission:

Sergeant Rusgrove: You stopped the van on the side of the road somewhere?
Gearin: No.
Sergeant Rusgrove: Okay, you was [sic] driving down the road? Okay. Did you just put your hand over there?
Gearin: I acted like a damn fool.
Sergeant Rusgrove: Okay. Is there anything else that you want to say? Is there anything that you want me to, to tell them? You want me to tell them that your [sic] sorry?
Gearin: Yea.

1. Gearin’s convictions for aggravated child molestation, aggravated sexual battery, child molestation, and first degree cruelty to children all center upon the allegation that he inserted his finger into D. G.’s vagina. He contends that the evidence is insufficient as to each of these convictions because it does not show that he had the requisite intent nor does it disprove his theory of defense that the incident was an accident. We disagree.

Intent, which is a mental attitude, can be inferred, and the law accommodates this. Furthermore,

[a] reviewing court will not disturb a factual determination by the jury on intent unless it is contrary to the evidence and clearly erroneous. The intent with which an act is done is peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground.

As for Gearin’s argument that his contact with D. G. was an accident, the trial court charged the jury that:

When the issue of accident is raised, the burden is on the State to negate it or disprove it beyond a reasonable doubt.
Any evidence as to misfortune or accident should be considered by you in connection with all the other evidence in the case. If, in doing so, you should entertain a reasonable doubt as to the guilt of the accused, it would be your duty to acquit.
On the other hand, should you believe from the evidence as a whole that the defendant is guilty beyond a reasonable doubt, then you may convict.

Although at one point, Gearin’s statement indicated that the incident was accidental, the jury obviously chose to reject his theory and was authorized to believe the testimony of the state’s witnesses and the state’s version of the incident. This is especially so in light of Gea-rin’s statement that “I acted like a damn fool.” From this statement, the jury could very well have inferred that the incident was not accidental. “Determinations as to the credibility of a witness are a matter solely within the jury’s purview and will not be disturbed on appeal.”

“A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” Aggravated sexual battery is committed when a person intentionally penetrates with a foreign object, such as a finger, the sexual organ or anus of another person without the consent of that person. A person who does any immoral or indecent act to a child under the age of 16 years with the intent to arouse or satisfy his own or the child’s sexual desires commits child molestation. “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” As the evidence supports the finding that Gearin inserted his finger into D. G.’s vagina, causing her physical injury, we find that it was sufficient to authorize the jury’s verdict as to each offense.

2. The child molestation charged in Count 5 alleged that Gearin touched D. G.’s anus. Gearin argues that there was no evidence that he touched D. G.’s anus and if he did, there was no intent on his part to do so. As we discussed in Division 1, intent can be inferred. Furthermore, D. G. testified that Gearin touched her bottom, and D. G.’s mother testified that by “bottom,” D. G. meant both her vagina and her rectal area. This evidence, combined with Dr. Perry’s testimony regarding the extent of D. G.’s injuries, authorized the jury to convict Gearin on this count as well.

Decided May 10, 2002.

Kevin R. Christopher, for appellant.

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

3. Lastly, Gearin argues that the trial court erred by denying his motion for directed verdict on the ground that venue had not been proven beyond a reasonable doubt. We disagree.

Generally, “[cjriminal actions shall be tried in the county where the crime was committed.” However, where a crime is committed upon a vehicle traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the vehicle traveled. In his statement, Gearin indicated that he traveled from D. G.’s house to a garage owned by Mike Roberts and then back to D. G.’s house. April testified that the routes between her home and Roberts’ repair shop were in Barrow County. Sergeant Rusgrove testified that the routes of travel that Gearin told him he took were located in Barrow County. Therefore, even if the actual offense occurred outside of the county, the evidence is undisputed that Gea-rin drove in Barrow County on March 6, 1995, with D. G. in his vehicle. This enumeration is meritless.

Judgment affirmed.

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

       (Citations and punctuation omitted.) Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

       (Citations and punctuation omitted.) Jones v. State, 234 Ga. App. 571 (1) (507 SE2d 804) (1998).

        Ney v. State, 227 Ga. App. 496, 497 (1) (489 SE2d 509) (1997).

       (Citations and punctuation omitted.) Id. at 497-498 (1).

       See Smith v. State, 249 Ga. App. 736, 737 (550 SE2d 106) (2001).

       (Footnote omitted.) Howard v. State, 252 Ga. App. 465, 468 (1) (556 SE2d 536) (2001).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-22.2 (b); Hardeman v. State, 247 Ga. App. 503 (544 SE2d 481) (2001).

       OCGA § 16-6-4 (a).

       OCGA § 16-5-70 (b).

        Ney, supra.

       See also Hurst v. State, 198 Ga. App. 380, 381 (3) (401 SE2d 348) (1991) (testimony of the victims, the adults investigating the disclosure of molestation, and the expert regarding physical manifestations of the incident was sufficient to authorize child molestation convictions).

       OCGA § 17-2-2 (a).

       OCGA § 17-2-2 (e).


text:
    A02A0561.
    WEST v. THE STATE.
    (565 SE2d 538)
   Pope, Presiding Judge.

Alexander West was indicted on a felony charge of sale of marijuana, which the indictment alleged occurred on February 25, 2000. West’s indictment contained a notice indicating that the state would seek sentencing under the recidivist statute. OCGA § 17-10-7 (c). West, who was represented by counsel, pled guilty to the charge on May 4, 2001. The trial court declined to sentence West under the recidivist statute, however, because one of the prior convictions noted in the indictment occurred in June 2000 for a crime committed in March 2000, which was after the sale of marijuana in this case. Instead, the trial court gave West a “straight sentence” of seven years to serve.

The state subsequently filed a motion to set aside this sentence, asserting that the trial court had overlooked a second recidivist notice filed by the state on March 28, 2001, prior to sentencing. This additional notice listed three prior felony convictions that all occurred before February 25, 2000. At a second sentencing hearing, the trial court concluded that it was bound by the recidivist statute due to the three prior convictions listed in the second recidivist notice and sentenced West to the maximum sentence of ten years, six to serve.

West asserts that the trial court erred in vacating the sentence and asserts that the trial court properly exercised its discretion in declining to apply the recidivist statute at the original May 4, 2001 sentencing hearing. We disagree.

Under OCGA § 17-10-7 (a), a person who commits a felony in the state of Georgia, after having previously been convicted and sentenced for a separate felony conviction, “shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense.” The trial judge, however, has the discretion to probate or suspend the maximum sentence. In addition, subsection (c) of the recidivist statute provides that upon a fourth felony conviction a felon “must. . . serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” OCGA § 17-10-7 (c). This language did not grant the trial judge any discretion to give West less than the maximum sentence under the circumstances of this case. See Buckner v. State, 253 Ga. App. 294, 297 (3) (558 SE2d 823) (2002).

We find Mikell v. State, 270 Ga. 467 (510 SE2d 523) (1999), upon which West relies, distinguishable. There, our Supreme Court held that a trial judge had discretion in sentencing for a second conviction under OCGA § 16-13-32.5 (b) because that statute has its own specific provision setting forth the mandatory range of punishment for subsequent convictions under the statute. OCGA § 16-13-32.5 (c). This statute was passed after OCGA § 17-10-7, the recidivist statute. The Supreme Court held that the later and more specific provisions of OCGA § 16-13-32.5 (c) controlled over the more general statute. 270 Ga. at 468-469. See also Mann v. State, 273 Ga. 366 (541 SE2d 645) (2001) (holding that trial court has discretion to follow mandatory sentencing guidelines under OCGA § 16-13-30 (d) for subsequent convictions for sale of controlled substances under Schedule I and Schedule II).

Decided May 10, 2002.

Tony C. Jones, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

The provision under which West was convicted, however, does not contain any mandatory sentencing guidelines for multiple convictions. OCGA § 16-13-30 (j). Therefore, we conclude that the general recidivist statute controls and the trial court properly sentenced West to the maximum of ten years. OCGA § 16-13-30 (j) (2). See State v. Jones, 253 Ga. App. 630, 632, n. 9 (560 SE2d 112) (2002).

Judgment affirmed.

Ruffin and Barnes, JJ, concur.


author: Barnes, Judge.

text:
    A02A0570.
    THE STATE v. SIMMONS.
    (565 SE2d 549)
   Barnes, Judge.

Charged with DUI, James Thomas Simmons successfully moved to suppress the results of his field sobriety evaluations and breath alcohol test. The State appeals, arguing that the arresting officer did not need additional articulable suspicion to ask Simmons to step out of his car after he was stopped at a roadblock. For the reasons outlined herein, we reverse.

Generally,

[w]hen an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and punctuation omitted.) Castillo v. State, 232 Ga. App. 354, 355-356 (502 SE2d 261) (1998).

Where, as in this case, the evidence at the suppression hearing was uncontroverted, and there was no question regarding the credibility of witnesses, “we review the trial court’s ruling on the motion to suppress to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.” (Citations, punctuation and footnotes omitted.) State v. Bute, 250 Ga. App. 479 (552 SE2d 465) (2001).

So viewed, the evidence presented at the motion hearing shows that on March 17, 2000, while working at a roadblock, a Lawrence-ville police officer stopped Simmons and asked him for his driver’s license and proof of insurance. Simmons produced his driver’s license but was unable to locate his insurance card. The officer asked Simmons to move his car to the side of the road, out of the flow of traffic. The officer testified, that during the initial stop, he detected the odor of alcohol coming from inside the car.

After Simmons pulled to the side of the road, the officer asked him to get out of the car and noticed that Simmons appeared “unsteady on his feet” when he was walking toward the rear of the car. He also noticed the smell of alcohol on Simmons’ breath. When asked if he had been drinking, Simmons said that he had drunk four Bud Lite beers and his last drink was thirty to forty-five minutes earlier.

The officer asked Simmons to perform a series of field sobriety tests, including the horizontal gaze nystagmus, the walk and turn evaluation and the one-leg stand test. Simmons exhibited signs of impairment in each test. Simmons thereafter consented to an alco-sensor test, which was positive for alcohol. The officer concluded that Simmons was a less safe driver and arrested him for DUI.

Simmons moved to suppress all evidence obtained as a result of the stop, arguing, among other things, that the roadblock was illegal and that the officers had no articulable suspicion of wrongdoing before stopping him. The trial court granted the motion to suppress, finding that, while the roadblock and initial stop were lawful, the officer lacked articulable suspicion to “effect a Terry seizure of the Defendant by removing him from his car following the initial roadblock stop.” We do not agree.

“Case law makes it clear that a Fourth Amendment seizure occurs when a vehicle is stopped at a checkpoint. And, as a part of a proper roadblock detention, motorists may be diverted to a second inspection area for questioning without the articulation of ‘reasonable suspicion’ that would sustain a patrol stop.” (Citations and punctuation omitted.) Workman v. State, 235 Ga. App. 800, 802 (2) (510 SE2d 109) (1998). And after being stopped at a lawful roadblock, Simmons does not become

Decided May 10, 2002

Gerald N. Blaney, Jr., Solicitor-General, Carole C. Korn, Gary S. Vey, Assistant Solicitors-General, for appellant.

Head, Thomas, Webb & Willis, Thomas J. Thomas, for appellee.

more “seized” by virtue of being diverted to the side of the road. Such is not a second detention, but a continuation of the original investigative stop and a part of the established operation of the roadblock. If the investigative stop was valid in the first place, . . . briefly prolonging the investigation does not require added proof that the stop was valid.

(Citation, punctuation and emphasis omitted.) Id.

Here, Simmons was stopped at a roadblock that was properly initiated by a supervisor to check licenses, insurance and car tags. He was diverted to the side of the road when he could not find his insurance card. The arresting officer noticed the odor of alcohol emanating from the car during the initial stop, and he also indicated that when Simmons was asked to step out of the car because he could not find his insurance card, he was unsteady on his feet and there was “an alcoholic odor on his breath.”

While the trial court found that there was no articulable suspicion to ask Simmons to step out of the car, the officer had reasonable and articulable grounds at that point to believe that Simmons was engaged in the criminal activity of driving without proof of insurance. The officer also smelled alcohol coming from the car. The brief additional intrusion occasioned by asking Simmons to get out of his vehicle, given the fact. that he had already been momentarily detained at the roadblock, was minimal. Workman, supra, 235 Ga. App. at 803.

Judgment reversed.

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

       Under OCGA § 40-6-10 (a) (1), it is illegal to drive with no proof of insurance.