text:
    A00A1539.
    WEISS v. VARNADORE.
    (541 SE2d 448)
   Blackburn, Presiding Judge.

Upon this Court’s grant of discretionary review, Rhonda Weiss, a/k/a Rhonda Minder, appeals the trial court’s latest order awarding joint custody of her minor children, N. M. S. and D. K. S., to her and to Mary Ann Varnadore, the children’s maternal grandmother, and awarding certain visitation rights to Varnadore. For the reasons set forth below, we vacate the judgment and remand the case for further consideration.

This custody dispute began November 5, 1996, when Varnadore sought custody of her grandchildren, ages nine years and five years, alleging that the children were mentally and physically abused by Weiss and her boyfriend, William Minder. The petition further showed that the natural father of the children, David Kelsey Sparre, from whom Weiss was divorced, was incarcerated at that time. As of November 5, 1996, Weiss was in the process of a divorce from Dean Weiss and had twice previously married and divorced Minder, with whom she was again having a relationship. The petition alleged bruising and physical abuse of the grandchildren and drug use by Weiss and Minder.

An ex parte emergency order was issued November 5, 1996, which granted Varnadore temporary emergency custody of the children. Varnadore appeared with counsel, while Weiss was present without counsel. Thereafter, Weiss obtained counsel and filed responsive pleadings. Varnadore filed numerous affidavits of individuals which alleged inappropriate conduct by Weiss. After a lengthy hearing, the trial court entered a temporary order on December 6, 1996, which awarded joint legal custody to both Varnadore and Weiss, with Weiss having physical custody. Additionally, the temporary order granted specific visitation rights to Varnadore.

Mr. and Mrs. Weiss reconciled, and for several months Varnadore and Weiss’s relationship improved. The Weiss reconciliation was short-lived, however, and Mrs. Weiss again took up a relationship with Minder. She wound up marrying Minder for the third time, on May 15, 1997, after her divorce from Mr. Weiss was final on April 27, 1997.

On April 15, 1997, Varnadore filed a motion for change of custody based on an unspecified change of condition and again sought an emergency ex parte order awarding temporary physical custody to her. Varnadore appeared with counsel, and Weiss was present without counsel. The trial court granted Varnadore’s motion. The order reflects that it was based on a confirmed oral agreement which had been reached by the parties prior to the request for hearing. The order vested temporary legal and physical custody of the children in Varnadore and Weiss. The order provided that Varnadore would have physical custody of the children until the 1996-1997 school year ended and provided liberal weekend visitation rights to Weiss.

In due course, the case came on for a final hearing on August 15, 1997, at which time the court heard from the parties and from witnesses. On August 29, 1997, following the hearing, the trial court, relying on OCGA § 19-7-1 (b.l), granted joint legal custody to both Weiss and Varnadore and specifically detailed visitation rights to Varnadore on the basis of OCGA § 19-7-1 (b.l). The court also provided inter alia that ‘‘[b]oth parties are on notice that this Court will monitor this case as necessary.” Order, August 29, 1997.

Notwithstanding the fact that the case was scheduled for a final disposition, we note that at the conclusion of the August 15, 1997 hearing, the trial court stated inter alia:

I will . . . talk to you as soon as I can about a — probably another temporary order if we can tolerate that, rather than any final order as to it. So much happens within a period of six to ten, twelve months in this case, from time to time, is one reason I’m leaning towards another temporary order rather than permanent.

Transcript, p. 78.

The transcript of the final hearing shows that, at the time of the hearing, the parties were not disputing the mother’s physical custody of the children, although joint legal custody had been awarded to the parties in the April 15, 1997 order, but rather, the sole issue addressed at the August 15, 1997 hearing was the visitation rights of Varnadore. Counsel for Weiss stated the issue, thusly: “And so we understand also that this is not a hearing to decide whether or not custody will change away from the biological mother. This is a hearing to decide whether or not there should be Court-ordered visitation.” Transcript, p. 10. Counsel for Varnadore agreed, stating:

We don’t. . . question the fact as long as she’s married and there’s stability in her life with Mr. Minder, fine. She can have custody. We’re here so this grandmother, who’s spent the last several years worrying about these grandchildren . . . can see these kids without being told no by her daughter. That’s all we’re here for . . . is grandparental visitation with Ms. Varnadore.

Transcript, pp. 13, 26.

We note the parties were addressing physical, not legal custody in the above-referenced statements. We further note that the trial court later issued an “Interim Temporary Order, Visitation Only,” on December 19, 1997, providing a visitation schedule for Varnadore for the Christmas 1997 holidays.

In an action fixing custody of children, an award is generally final and exhaustive of the court’s jurisdiction. Any attempt to retain jurisdiction and to make the custody award temporary is ineffective. Language purporting to retain jurisdiction will be viewed as surplus-age and the order considered final. See Broome v. Broome; Buck v. Buck.

Weiss (now Minder) filed a motion for new trial on September 29, 1997. On October 17, 1997, she amended her motion for new trial and raised for the first time the contention that OCGA § 19-7-1 (b.l) is unconstitutional in that it violates the due process and privacy rights of the United States and Georgia Constitutions by allowing state interference with parental rights without a showing that the custodial parent is unfit and that such interference is necessary to protect the health and welfare of the child. The trial court read, considered, and denied the motion for new trial on April 24, 1999, approximately 20 months after the custody hearing.

Weiss/Minder then filed an application for discretionary appeal with our Supreme Court raising the constitutionality of OCGA § 19-7-1 (b.l). The Supreme Court held that it lacked constitutional jurisdiction as the trial court had not ruled on the constitutional question, citing Yarbrough v. Ga. R. &c. Co. The application was then transferred to this Court, by order of the Supreme Court on June 17, 1999. This Court granted the application on July 16, 1999, and this appeal followed.

Weiss challenges the award of joint custody, contending that OCGA § 19-7-1 (b.l) does not authorize a court to award joint custody between a parent and a grandparent and that, even if the statute authorizes joint custody, the evidence does not support the award of custody in this case.

The superior court’s authority to award joint custody of a minor child, including joint legal custody and/or joint physical custody, arises from the definitions contained in OCGA § 19-9-6, one of the statutes dealing with custody issues between parents. See OCGA § 19-9-3 et seq. The literal terms of OCGA § 19-9-6 (1), (2), and (3) show that both “joint legal custody” and “joint physical custody” involve a sharing of custody between the parents. In contrast, under OCGA § 19-9-6 (4), “sole custody” may relate to a person other than a parent. See Baldwin v. Baldwin (applying joint custody provisions with respect to the parents of minor children); Scott v. Scott (same). In In the Interest of J. N. T., this Court held, with reference to OCGA § 19-9-6 (3), that “joint physical custody” is divided physical custody between estranged parents and that the Code section “contemplates no other purpose sufficient to authorize . . . a true joint physical custody arrangement.” See also In the Interest of A. R. B. (physical precedent only). This is a perfectly rational statutory scheme, considering the fact that, traditionally, the constitutional rights of a parent could not be interfered with by the State or a third party, absent a showing of unfitness of such parent. It would generally make no sense to award joint custody to an unfit parent. Georgia law does not, however, preclude an award of joint custody to a third party by the trial court upon the consent of the parent to such an arrangement or upon a waiver by such parent of constitutionally protected parental rights, provided that the trial court determines that the award is in the best interest of the child. Rights and obligations which the court has no authority to create may become enforceable by order of the court where the parties agree to such an arrangement, and the court approves the agreement and incorporates it into the order of the court. An agreement to pay college expenses or to provide support after a child attains the age of majority are examples of such arrangements.

As noted above, Weiss argued in her application for discretionary appeal that OCGA § 19-7-1 (b.l) was unconstitutional for the reasons stated. However, that issue was removed from this case by the fact that this Court has no authority to review the constitutionality of a statute and our Supreme Court did not do so. Our Supreme Court has not, as yet, definitively addressed the constitutionality of the “best interest standard” set forth in OCGA § 19-7-1 (b.l). This issue may be addressed in cases presently pending before that court. See Clark v. Wade; Driver v. Raines.

Prior to the enactment of OCGA § 19-7-1 (b.l) in 1996, it was clear that a trial court had only a limited authority to award custody of minor children to the grandparents in a custody action with a parent. Absent consent, or a waiver of parental rights, the parent’s custodial rights in such cases could be lost only upon a showing by clear and convincing evidence that the parent was either unfit or incapable of caring for the child under the standards of OCGA § 19-7-4 and that a failure to act would result in harm to the child, or that the parent was otherwise not entitled to custody under OCGA § 19-7-1. Blackburn v. Blackburn; Larson v. Larson.

OCGA § 19-7-3, Georgia’s “Grandparent Visitation Statute,” which provides for an original action by a grandparent for the establishment of visitation rights, was declared unconstitutional by our Supreme Court in 1995, under both our state and federal constitutions, in Brooks v. Parkerson. In declaring OCGA § 19-7-3 unconstitutional, our Supreme Court held inter alia:

[E]ven assuming grandparent visitation promotes the health and welfare of the child, the state may only impose that visitation over the parents’ objections on a showing that failing to do so would be harmful to the child. It is irrelevant, to this constitutional analysis, that it might, in many instances be “better” or “desirable” for a child to maintain contact with a grandparent. The statute in question is unconstitutional under both the state and federal constitutions because it does not clearly promote the health or welfare of the child and does not require a showing of harm before state interference is authorized.

(Footnote omitted.) Brooks v. Parkerson, supra at 194.

In 1996, our legislature enacted OCGA § 19-7-1 (b.l), which specifically addresses additional authority for awarding custody to a grandparent in an action between parents or between parents and a grandparent. Notwithstanding Brooks v. Parkerson, it provides:

(b.l) Notwithstanding subsections (a) and (b) of this Code section or any other law to the contrary, in any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, . . . parental power may be lost by the parent, ... if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

Ga. L. 1996, pp. 412-413.

Subsequently, the constitutionality of OCGA § 19-7-1 (b.l) was raised before our Supreme Court in Grantham v. Grantham. In Grantham, however, our Supreme Court concluded that the trial court had found that it was in the best interest of the child that custody be awarded to the grandmother and that the mother was not a fit and proper person to have custody of the child. The Supreme Court concluded that appellate review of the custody order in Grant-ham was impossible as the trial court’s order contained potentially conflicting conclusions of law and no findings of fact to substantiate either one. The Supreme Court therefore vacated the trial court’s judgment and remanded the case with direction that the trial court grant appellant’s motion for findings of fact and conclusions of law and supplement its current order with findings which would allow meaningful appellate review of the decision. Given the present state of the law in this area, it would seem advisable for a trial court to include specific findings of fact and conclusions of law in similar cases, whether or not either of the parties has requested such inclusion under the authority of OCGA § 9-11-52.

Decided November 3, 2000.

E. Jerrell Ramsey, for appellant.

In the present case, it is likewise not possible from the state of the record and the order of the court to determine what standard the trial court applied in its order and what evidence or agreement it relied upon in doing so. The trial court did not address whether or not it was relying on any consent to its custody order by Weiss under OCGA § 19-7-1 (b) or any waiver of her constitutional rights by her oral agreement to the joint custody arrangement. Being unable to appropriately review this case, we vacate the trial court’s judgment and remand the case for further consideration, consistent with this opinion.

The issue of the constitutionality of OCGA § 19-7-1 (b.l) cannot be ruled upon by this Court for the reasons stated. On remand, the trial court can rule upon this issue and create a record thereof so that the matter may be properly reviewed at the appellate level in the event of a future appeal.

Judgment vacated and case remanded.

Eldridge and Barnes, JJ, concur.

       Appellee Varnadore did not file a responsive brief with this Court.

       Varnadore was given visitation rights every other weekend and flexible visitation during the weekdays.

        Broome v. Broome, 212 Ga. 132 (91 SE2d 18) (1956).

        Buck v. Buck, 238 Ga. 540 (1) (233 SE2d 792) (1977).

        Yarbrough v. Ga. R. &c. Co., 176 Ga. 780 (168 SE 873) (1933).

        Baldwin v. Baldwin, 265 Ga. 465 (458 SE2d 126) (1995).

        Scott v. Scott, 227 Ga. App. 346, 350 (489 SE2d 117) (1997).

        In the Interest of J. N. T., 212 Ga. App. 498, 500 (441 SE2d 918) (1994).

        In the Interest of A. R. B., 209 Ga. App. 324, 326 (2) (433 SE2d 411) (1993).

        Clark v. Wade, Case No. S00A1610.

        Driver v. Raines, Case No. S00A2014.

        Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982).

        Larson v. Larson, 192 Ga. App. 163 (384 SE2d 193) (1989).

        Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769) (1995).

        Grantham v. Grantham, 269 Ga. 413 (499 SE2d 67) (1998).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A0936.
    In the Interest of K. J. T., a child.
    (542 SE2d 514)
   Pope, Presiding Judge.

A petition was filed against K. J. T. in the Juvenile Court of Dougherty County charging him with the delinquent act of being a party to the crime of aggravated assault. The state filed a motion to transfer to the superior court as provided by OCGA § 15-11-39. The first hearing on the motion was continued so that a psychological evaluation could be performed. After the psychological evaluation was completed, the juvenile court held another hearing and then granted the motion to transfer to the superior court. K. J. T. appeals, arguing that the juvenile court abused its discretion in granting the motion because the state failed to show reasonable grounds to believe that he was not committable to an institution for the mentally ill as required by OCGA § 15-11-39 (a) (3). We agree and reverse.

Following notice and a hearing, the juvenile court may transfer an offense if:

(3) The court in its discretion determines there are reasonable grounds to believe that: (A) The child committed the delinquent act alleged; (B) The child is not committable to an institution for the mentally retarded or mentally ill; and (C) The interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and (4) The child was at least 15 years of age at the time of the alleged delinquent conduct or the child was 13 or 14 years of age and committed an act for which the punishment is loss of life or confinement for life in a penal institution.

OCGA § 15-11-39 (a).

The clinical psychologists who evaluated K. J. T. made the following observations:

He was disheveled and appeared very anxious. . . . He appeared to be responding to internal stimuli throughout the interview and upon query stated he was hearing voices. Upon query, he stated somebody was calling his name. He also reported being afraid somebody was trying to hurt him. His behavior was bizarre in that he was shaking uncontrollably and looking around the room suspiciously. His thinking was illogical and he was verbally unresponsive most of the time. ... He was not oriented to date or place . . . and . . . was observed making unusual hand gestures. . . . Formal testing was not performed due to his bizarre behavior and inability to communicate.

Based on these observations, the psychologists recommended that K. J. T.

be transferred to an inpatient psychiatric setting where his behavior can be monitored and he can be evaluated for psychotropic medication treatment. Given his current legal situation, it is possible that [K. J. T] is malingering, or faking psychotic symptoms, for external gain. Therefore, psychiatric observation should rule out a diagnosis of malingering during his inpatient hospitalization. Following stabilization on medication, it is recommended that [K. J. T] be provided with further psychological evaluation if warranted to determine intellectual ability, rule out cognitive impairment, and make further treatment recommendations.

At the hearing on the motion, the state presented the testimony of two probation officers who had varying degrees of contact with K. J. T. over the course of several years. Although both witnesses testified that they had never witnessed any behavior that would indicate K. J. T. suffered from a mental disorder, the record shows that the most recent contact either witness had with K. J. T. occurred almost two years prior to the transfer hearing. Thus, neither witness had any knowledge about K. J. T.’s current mental state, which the juvenile court recognized could have changed since the witnesses’ last contact with K. J. T. Cf. In the Interest of J. T., 214 Ga. App. 349, 350 (1) (447 SE2d 702) (1994) (nonexpert witnesses had recent contact with juvenile). Nevertheless, the trial court granted the motion to transfer, concluding that because there were other charges pending against K. J. T. in superior court, that court was in a better position to follow up on the recommendations of the testing psychologists.

We find the trial court abused its discretion in granting the motion to transfer. The determination that there are reasonable grounds to believe that the child is not committable to an institution for the mentally retarded or mentally ill “must, of course, be supported by competent evidence, and the burden of presenting such evidence lies with the state.” (Citations omitted.) In the Interest of S. R., 189 Ga. App. 829 (377 SE2d 911) (1989). Although it is true, as the state argues, that the juvenile court may rely upon nonexpert testimony concerning the mental condition of the juvenile, the state’s evidence in this case, consisting of the testimony of the two juvenile probation officers, was not competent to establish K. J. T.’s present mental condition. The only probative evidence offered concerning K. J. T.’s current mental state was the opinion by two experts that his present mental condition could not be properly assessed unless he was transferred to an inpatient psychiatric facility for further evaluation. And we do not agree with the state’s conclusion that the inpatient assessment recommended by the testing psychologists “was directed primarily at ferreting out K. J. T.’s suspected malingering.” Although the psychologists mentioned this as a “possible” explanation for K. J. T.’s bizarre behavior, they also clearly indicated that K. J. T.’s current mental state could not be properly determined without inpatient observation and evaluation for psychotropic medication treatment. Thus, the evidence here was inconclusive concerning K. J. T.’s committability to a mental institution. Although further evaluation may show a reasonable probability that K. J. T. is not committable, it was premature for the juvenile court to conclude that the required showing had been made based on the evidence available at the time of the hearing.

Decided November 6, 2000.

Billy C. Mathis, Jr., Caroline A. Cormack, for appellant.

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

[BJecause the present record affords no basis for a determination one way or the other regarding the issue of [K. J. T.’s] committability to a mental institution, we believe the most appropriate disposition of the case is to vacate the judgment of the juvenile court and remand for a new hearing on the matter [after K. J. T. has been evaluated further]. ... To foreclose the possibility of a transfer on the basis of the record currently before us would be to impose arbitrarily a result which may not be in the public’s interest, without vindicating any right of the accused.

L. K. F. v. State of Ga., 173 Ga. App. 770, 772 (2) (328 SE2d 394) (1985). In the Interest of R. A. J., 214 Ga. App. 162, 163-164 (2) (447 SE2d 158), rev’d on other grounds, In re R. B., 264 Ga. 602, 604 (3) (448 SE2d 690) (1994).

Judgment reversed and remanded.

Miller and Mikell, JJ, concur.

       This Code section was amended and redesignated as OCGA § 15-11-30.2, effective July 1, 2000. However, none of the changes to the language of the Code section would affect the resolution of the present appeal.


text:
    A00A1353.
    THE STATE v. CUNNINGHAM et al.
    (541 SE2d 453)
   Pope, Presiding Judge.

Eddie and Tamika Cunningham were charged with trafficking in methamphetamine. They filed a motion to suppress, which the trial court granted, and the State appeals. For the following reasons, we affirm.

Evidence at the suppression hearing showed that on February 25, 1999, Police Officer Kirkpatrick received information from Officer Rodney Clemones, a member of the Rome Drug Task Force, to watch for a specifically described Caprice Classic. Clemones told Kirkpatrick that the car would be coming from the Atlanta area on Highway 411 and was occupied by a white female and possibly a white male. He further advised that the passengers in the vehicle might be carrying methamphetamine. Clemones did not provide any information regarding the source of this information either to Kirkpatrick or at the hearing, nor did he provide any further details regarding the tip.

At 10:45 p.m. Kirkpatrick saw a vehicle which fit the description traveling on the highway. He noticed that the male passenger, later identified as Eddie Cunningham, was not wearing a seat belt and that the car did not maintain its lane of travel. Kirkpatrick signaled for the vehicle to pull over, and the female driver, later identified as Tamika Cunningham, pulled over. As Kirkpatrick approached the car, he saw the “passenger reaching into the floorboard or the glovebox for something or putting something in there.”

Kirkpatrick saw that in addition to Mr. and Ms. Cunningham, there were two children in the car. Upon request Ms. Cunningham was able to produce proof of insurance, but she told Kirkpatrick that she had lost her license. Kirkpatrick ran a license check and discovered that her license was expired. He then gave Ms. Cunningham a verbal warning regarding her failure to maintain a single lane and a courtesy warning on the seat belt violation; he did not issue a citation for her expired license. While Kirkpatrick was giving the warnings, Ms. Cunningham stood at the rear of the car. Kirkpatrick conceded at the suppression hearing that after he had given these warnings, his investigation of the seat belt violation, the lane violation and the status of her driver’s license was concluded.

Kirkpatrick then requested Ms. Cunningham’s consent to search her vehicle. He asked her two to three times, but Ms. Cunningham did not answer. Kirkpatrick stated that Ms. Cunningham appeared very nervous and would not look at him while he was talking to her. Kirkpatrick admitted that he did not tell Ms. Cunningham that she was free to go at this point because she was still being detained. Kirkpatrick then went and got his drug dog out of the police car. Next, Officer Jacobs arrived on the scene and asked Mr. Cunningham to get out of the car. When he complied, Jacobs did a pat-down of Mr. Cunningham for weapons and found a pipe used to smoke marijuana in his jacket pocket.

Kirkpatrick then walked the dog around the Cunninghams’ car, and the dog alerted on all four doors of the vehicle. When Kirkpatrick opened the door to the car, the dog alerted to a yellow plastic container in the passenger side floorboard where Kirkpatrick had earlier observed Mr. Cunningham reaching. Kirkpatrick opened the container and found 42.2 grams of methamphetamine.

Although the State argues that both the initial stop and the subsequent detention were lawful, the Cunninghams did not argue below, nor do they argue here, that the initial stop was invalid. Rather, they contend that the sole issue to be determined is whether Kirkpatrick had the authority to detain and search the vehicle for drugs after the traffic stop had been concluded, without consent and without a warrant. We agree with the trial court that he did not.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) State v. Day, 237 Ga. App. 771, 772 (1) (516 SE2d 822) (1999).

“Investigative stops of vehicles are analogous to Terry stops.” Migliore v. State of Ga., 240 Ga. App. 783, 784 (525 SE2d 166) (1999). In Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995), this court set forth the boundaries of a Terry stop:

While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.

(Citations and punctuation omitted.) Id. “Further, an officer who questions and detains a suspect for other reasons exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity.” (Citation and punctuation omitted.) Migliore, 240 Ga. App. at 784.

After Kirkpatrick issued the courtesy warnings to Ms. Cunningham, the traffic stop for which she had originally been pulled over had concluded. Kirkpatrick conceded at the suppression hearing that at this point he had concluded his investigation of the possible traffic offenses. Thus, the question becomes whether Kirkpatrick’s continued detention of the Cunninghams at this point was based on his reasonable suspicion that they were transporting illegal drugs.

The appropriate legal standard for determining whether the additional questioning and the walk-around exceeded the scope of permissible investigation, in the absence of consent, is whether the officers had a reasonable suspicion that [they were] transporting illegal drugs.

(Citation omitted; emphasis in original.) Simmons v. State, 223 Ga. App. 781, 782 (2) (479 SE2d 123) (1996).

“The State bears the burden of presenting evidence that demonstrates a reasonable suspicion of criminal activity.” (Citation omitted.) McSwain v. State, 240 Ga. App. 60, 61 (522 SE2d 553) (1999). Here, the State argues that Officer Kirkpatrick had a reasonable suspicion that the Cunninghams possessed drugs because: (1) he had a tip from the drug task force which had been corroborated to that point; (2) as the car pulled over, Kirkpatrick noticed Mr. Cunningham bending toward the floor of the car as if concealing something; (3) Ms. Cunningham appeared nervous and would not look at Kirkpatrick when he asked for her consent to search the car; and (4) they had committed three traffic violations.

We disagree. In McSwain v. State, officers received a lookout which stated that a certain car with a certain number of passengers would be traveling north on Interstate 95 toward one of the Carolina states and that “the trunk possibly contained unspecified ‘contraband.’ ” Id. at 64. This court concluded that the lookout could not support an investigatory stop because it did not contain the kind of “predictive ‘inside information’ about alleged criminal activity” that could be meaningfully corroborated. Id. In this case, as in McSwain, 240 Ga. App. at 62, the lookout which Kirkpatrick received contained no specific, articulable facts suggesting criminal activity on the part of the occupants of the car.

Although the lookout very well may have been based on particularized facts supporting an inference of criminal conduct, the State failed to present evidence of such a factual basis, as was its burden, and we cannot assume the existence of reasonable suspicion for the stop in the absence of such evidence. ... To hold otherwise would permit police officers who themselves lack legitimate grounds for a stop to manufacture such grounds simply by broadcasting a lookout for a particular vehicle over the police radio.

Id. at 62.

Similarly, Kirkpatrick’s observation that he saw the passenger lean toward the floorboard as if to put something there was not supported by any further evidence. Kirkpatrick did not state that he saw a container on the floor of the car during the stop and did not provide any corroborative details regarding his “hunch” that Mr. Cunningham leaned forward to put something in the glovebox or on the floor.

Finally, without more, the fact that Ms. Cunningham appeared nervous did not establish the reasonable suspicion necessary for the continued detention. See Simmons v. State, 223 Ga. App. at 782 (2). Kirkpatrick had completed his investigation for the traffic offenses, and the prolonged detention of the Cunninghams was excessive. See Smith v. State, 216 Ga. App. at 454-455 (2); State v. Kwiatkowski, 238 Ga. App. 390 (519 SE2d 43) (1999); see generally Parker v. State, 233 Ga. App. 616, 617-619 (1) (504 SE2d 774) (1998). Accordingly, the court’s grant of the motion to suppress was not clearly erroneous.

Decided November 6, 2000.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellant.

William E Sparks, Harry M. Moseley, James C. Wyatt, for appellees.

Judgment affirmed.

Miller and Mikell, JJ., concur.


text:
    A00A1634.
    WILKINS v. THE STATE.
    (541 SE2d 458)
   Pope, Presiding Judge.

Defendant Lester Bebee Wilkins was convicted by a jury of two counts of arson in the first degree. At sentencing, the trial court merged Count 2 into Count 1. Wilkins appeals following the denial of his motion for new trial.

1. Relying on Cuzzort v. State, 271 Ga. 464 (519 SE2d 687) (1999), Wilkins contends the trial court erred by calling the case out of the order listed on the trial calendar. We find no error. Cuzzort clearly stands for the proposition that the trial judge has discretion under OCGA § 17-8-1 to call a case out of order. Id. at 465 (3). Moreover, in order to secure a reversal on this basis, harm as well as an abuse of discretion must be shown. Rosenbrook v. State, 78 Ga. 111, hn. 2 (1886); State v. Jessup, 187 Ga. App. 429, 430 (370 SE2d 489) (1988) (physical precedent only); Merrill v. State, 130 Ga. App. 745, 747 (1) (204 SE2d 632) (1974). The transcript in this case shows that both the prosecuting attorney and defense counsel announced ready for trial, and there is nothing in the record to show that Wilkins was prejudiced by the case being called out of order. This enumeration is without merit.

2. Wilkins next contends that the trial court erred by imposing a requirement that all voir dire questions be submitted in writing before trial. Wilkins argues that this results in the imposition of a local rule without Supreme Court approval. We find no merit to this contention. As we have held on many occasions, the control of voir dire is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review. See, e.g., Allen v. State, 239 Ga. App. 899, 900 (522 SE2d 502) (1999) and cits, (whether to use written or oral questions falls within the sound discretion of the trial court); Brumelow v. State, 239 Ga. App. 119, 120 (1) (520 SE2d 776) (1999) (order in which co-defendants allowed to question jurors fully within court’s control). The use of this procedure allowed the court to handle voir dire more efficiently and prevented this stage of the proceedings from becoming unnecessarily protracted by requiring the court to sort through redundant or improper questions during voir dire. Indeed, the need for this procedure is demonstrated by Wilkins’ submission of 63 proposed voir dire questions, many of which the court found were not proper inquiries. See Division 3, below.

3. Wilkins next contends that the trial court improperly disallowed 42 of his 63 proposed voir dire questions.

What limits a court may place on voir dire questions lie largely within the sound discretion of the court, and we will not interfere with the exercise of that discretion unless it is manifestly abused. The court did not abuse its discretion here in disallowing questions about the credibility of witnesses based on their status as police officers or otherwise. Nor did the court abuse its discretion in precluding questions concerning the burden of proof, reasonable doubt, and the presumption of innocence, for these are technical legal questions on which the court will instruct at the end of trial. Finally, because the questions should be confined to those designed to elicit possible prejudice against the accused or juror bias or interest in the outcome, the court did not manifestly abuse its discretion in disallowing the remaining disputed questions.

(Citations omitted.) Ganas v. State, 245 Ga. App. 645, 647-648 (2) (537 SE2d 758) (2000). McCoy v. State, 231 Ga. App. 703, 704 (2) (500 SE2d 611) (1998) (no abuse of discretion shown when prohibited question not phrased or designed to elicit or reveal any actual bias or prejudice against appellant); Anderson v. State, 236 Ga. App. 679, 682 (3) (513 SE2d 235) (1999) (no question should ask for a response which might amount to a prejudgment of the case).

4. Wilkins next contends that the prosecutor made an improper comment during the state’s opening statement, and that curative instructions should have been given or a mistrial granted. The record shows that the prosecutor said, “and they also asked his permission to take a blood sample. He did not want to do that at that time. So they went to a judge and got a search warrant and took the blood sample that way.”

Wilkins argues that this statement was an improper comment upon the invocation of his right against self-incrimination.

To reverse for improper comment by the prosecutor, we must find one of two things: that the prosecutor’s manifest intention was to comment upon the accused’s failure to testify or that the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. The prosecutor’s remark in the present case, taken in context, was a comment on [Wilkins’] failure to [consent to giving a blood sample] at the time of his arrest. Inasmuch as there is another equally plausible explanation for the prosecutor’s statement, we cannot conclude that it was intended to comment on [Wilkins’] failure to testify or that the jury would naturally take it to be such a comment.

(Citations and punctuation omitted.) Givens v. State, 199 Ga. App. 709-710 (405 SE2d 898) (1991).

5. Wilkins argues that the trial court erred in admitting the conclusions of the state’s DNA expert because the state failed to show that the person who drew his blood was qualified to do so and failed also to show a proper chain of custody of his blood.

Citing Peek v. State, 272 Ga. 169 (527 SE2d 552) (2000), Wilkins argues that the state was required to establish the credentials of the person who drew his blood by presenting a Department of Human Resources certificate or the testimony of the person who drew the blood. But Peek concerned the issue of blood testing pursuant to OCGA § 40-6-392 in DUI cases; it does not apply to the situation in this case, in which the defendant’s blood was drawn pursuant to a search warrant for DNA testing. Thus, Wilkins’ reliance on Peek is misplaced.

Moreover, in establishing the chain of custody, the state presented the testimony of Officer Merck, who testified that he transported Wilkins to a local hospital, he watched as a nurse drew Wilkins’ blood, and he then transported the vials to the Georgia Bureau of Investigation crime lab. A forensic serologist from the GBI crime lab testified that he received the blood vials after they were delivered to the crime lab by Officer Merck, that they did not appear to have been tampered with, and that he then repackaged the vials and processed and stored them in accordance with his normal practice. Finally, the analyst who performed the DNA testing testified as to the condition of the samples when she retrieved them from storage to perform the DNA testing. This testimony, as well as other evidence presented at trial, was sufficient to adequately prove the chain of custody.

When blood samples, are handled in a routine manner and nothing in the record raises a suspicion that the blood sought to be admitted is not the blood tested, the blood is admissible and the circumstances of each case need only establish reasonable assurance of the identity of the sample. . . . Absent affirmative evidence of tampering, mere speculative doubt as to the handling of evidence while in the possession of the Georgia Crime Lab is a matter for consideration by the jury.

Decided November 6, 2000

Sean A. Black, for appellant.

Michael H. Crawford, District Attorney, William C. Akins, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Johnson v. State, 271 Ga. 375, 382 (13) (519 SE2d 221) (1999).

6. Wilkins next enumerates as error the denial of his motion for directed verdict as to Count 2 of the indictment, which charged him with first degree arson in that he “did unlawfully and knowingly damage, by means of fire, the dwelling house of another, to wit: Peggy Wilkins, which dwelling house was insured against damage by Georgia Farm Bureau, without the consent of said insurer.” However, because the trial court merged this count with Count 1 at sentencing, this enumeration is rendered moot. See, e.g., Cullingham v. State, 242 Ga. App. 499, 500 (2) (529 SE2d 199) (2000); Carter v. State, 237 Ga. App. 703, 710 (6) (516 SE2d 556) (1999).

7. Lastly, contrary to defendant’s final enumeration of error, the evidence presented at trial was sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to convict him of arson in the first degree as charged in Count 1 of the indictment.

Judgment affirmed.

Miller and Mikell, JJ, concur.


author: Miller, Judge.

text:
    A00A2115.
    KIRTON v. THE STATE.
    (541 SE2d 673)
   Miller, Judge.

Francis Kirton was convicted of incest, statutory rape, and two counts of child molestation based on the following evidence: (1) his ten-year-old stepdaughter stated on the stand and in a videotaped interview that he had repeatedly engaged in sexual intercourse with her over a period of years, (2) a physician testified that she disclosed the abuse to him and that he examined her and found definite evidence of repeated and prolonged vaginal penetration, (3) three other witnesses testified that she reported the sexual abuse to them, including an instance of fondling, and (4) Kirton confessed to police that he had once masturbated in front of the victim. On appeal he contends that the court erred in denying a mistrial when an officer gave improper evidence and in refusing to give jury charges on the voluntariness of his statement and on the need for the State to show he had a “general plan” to use his stepdaughter to satisfy his sexual desires. We hold that since the improper evidence was cumulative, the trial court did not abuse its discretion in denying the mistrial, and that the referenced jury charges were not requested, were incorrect statements of law, or were substantially covered in the jury instructions. Accordingly, we affirm.

1. Since the victim’s mother was a co-defendant, the court ordered that under Bruton v. United States, the mother’s statement to police (that the victim told her of the molestation by Kirton) was partially inadmissible. The court ruled and the State agreed that the officer could testify only that the mother reported that the victim had told her of being molested, with no identification of Kirton as the molester. Even though the officer was present when the court made this ruling, he nevertheless testified that the mother told him that the victim had told her of being molested by Kirton.

Kirton moved for a mistrial, and the court immediately gave curative instructions that the jury should completely disregard the mention of “Kirton” or “the stepfather” in the statement. The court withheld ruling on the motion for mistrial until it had heard all the evidence, at which time it denied the motion. Kirton argues that this was reversible error.

A trial court has broad discretion in deciding a motion for mistrial, and we will not disturb its ruling absent a manifest abuse of that discretion and a showing that a mistrial was essential to preserve the right to a fair trial. Where the ground for the motion is the placement of inadmissible evidence before the jury, the court has discretion as to the measures necessary to correct the error, which may be curative instructions only.

Though a statement is inadmissible under Bruton, its admission may be harmless and thus not necessarily reversible error. For example, if the statement is merely cumulative of other competent evidence, its admission is likely not harmful. Since even uncured Bruton violations may under certain circumstances be harmless, a trial court could reasonably conclude under similar circumstances that a curative instruction is all that is necessary to remove the improper statement from the jury’s consideration.

Here the Bruton violation was the mother’s statement to police that the victim told the mother Burton had molested her. This statement was merely cumulative, for (1) the victim herself stated both on the stand and in her videotaped interview that she had told her mother that Kirton had molested her, (2) the victim reported to several witnesses that Kirton had molested her, and (3) the victim confirmed at trial that Kirton had molested her. Moreover, Kirton’s own custodial statement admitted the substance of Count 4 of the indictment. Under the circumstances, the trial court did not manifestly abuse its discretion in deciding that the curative instruction not to consider the officer’s improper testimony sufficed, without a mistrial, to correct the alleged Bruton violation.

2. Kirton’s second enumeration is that the court erred in not instructing the jury “on the law of voluntary statements given by a defendant while being questioned by law enforcement officials.” At the hearing on his motion for new trial, Kirton admitted that he had not requested a charge on this matter. “Under established Georgia law there is no necessity to give a charge on the subject of the voluntariness of a confession unless there is a specific request for it.”

Kirton seeks to expand this enumeration by arguing that the court erred in not giving his requested charge on the need for corroboration of a confession under OCGA § 24-3-53. Such an expansion is impermissible. Even if we were to consider the argument, it lacks merit in that, as intimated by Kirton below, the court adequately covered the relevant legal principle in its charge to the jury.

Decided November 6, 2000.

John R. Thigpen, Sr., for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

3. Citing Staggers v. State, Kirton’s third enumeration contends the court erred in not giving his requested charge that, as an element of the crime of child molestation, the State had to prove he had “a general plan to use the child to gratify his lust or passions or sexual desires.” We rejected this same argument in Lewis v. State, where we held that the relevant language from Staggers concerned only the admissibility of similar transactions, not the elements of the offense of child molestation. The court here fully charged the jury on the elements of child molestation. It did not err in refusing to give the incorrect and inapplicable charge requested by Kirton.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968) (statement of nontestifying co-defendant which identifies and incriminates defendant is inadmissible).

        Wilcox v. State, 229 Ga. App. 192, 193 (2) (493 SE2d 600) (1997).

       Id. at 193-194 (2).

       See, e.g., Borders v. State, 270 Ga. 804, 810-811 (4) (b) (514 SE2d 14) (1999); Hanifa v. State, 269 Ga. 797, 804 (2) (505 SE2d 731) (1998); Montijo v. State, 238 Ga. App. 696, 701-702 (3) (b) (520 SE2d 24) (1999); see generally Reddish v. State, 238 Ga. 136, 138 (1) (231 SE2d 737) (1977), citing Schneble v. Florida, 405 U. S. 427, 430 (92 SC 1056, 31 LE2d 340) (1972).

        Copeland v. State, 266 Ga. 664, 667 (3) (b) (469 SE2d 672) (1996); Alexander v. State, 236 Ga. App. 142, 146 (1) (511 SE2d 249) (1999). Compare Rachel v. State, 247 Ga. 130, 135 (4) (274 SE2d 475) (1981) (Bruton error held harmful where co-defendant’s incriminating confession was not merely cumulative).

       Cf. Bradley v. State, 234 Ga. 664, 667-668 (217 SE2d 264) (1975) (no abuse to deny mistrial where alleged Bruton violation did not implicate defendant).

        Copeland, supra, 266 Ga. at 667 (3) (b); Bradley, supra, 234 Ga. at 668.

       See OCGA § 24-3-50.

       (Citations and punctuation omitted.) Blackmon v. State, 197 Ga. App. 133, 134 (2) (397 SE2d 728) (1990).

        Felix v. State, 271 Ga. 534, 539, fn. 6 (523 SE2d 1) (1999); Kelly v. State, 238 Ga. App. 691, 696 (2) (520 SE2d 32) (1999).

       See Wright v. State, 199 Ga. App. 718, 721 (3) (405 SE2d 757) (1991) (“[a] trial court does not err in failing to give a charge in the exact language requested where, as here, the charge given substantially and adequately covered the principles in the request. [Cit.]”).

       120 Ga. App. 875, 876 (2) (172 SE2d 462) (1969).

       212 Ga. App. 310, 312-313 (5) (441 SE2d 851) (1994).

       Compare OCGA § 16-6-4 (a) (describing the elements of child molestation).

       See Kent v. State, 245 Ga. App. 531, 533-534 (4) (538 SE2d 185) (2000) (court properly denies giving a charge that is inapt or incorrect or misstates the law); see generally Register v. State, 229 Ga. App. 648 (1) (494 SE2d 555) (1997).


text:
    A00A2278.
    JACKSON v. THE STATE.
    (541 SE2d 672)
   Miller, Judge.

Ralph Jackson, Jr. was charged in an indictment with possession of cocaine with intent to distribute and possession of a controlled substance within 1,000 feet of a school. With the assistance of counsel, Jackson entered into a negotiated guilty plea to one count of possession of cocaine. The day before the plea hearing, counsel filed a written plea of former jeopardy. The basis for this plea is that, at the hearing where Jackson was bound over by the Muscogee County Recorder’s Court to superior court for the two cocaine charges, he was also adjudicated guilty of disorderly conduct by the recorder, for which offense he served his sentence and paid his fine. At the superior court guilty plea hearing, in Jackson’s presence, counsel expressly informed the trial court that, while counsel did file a “plea of former jeopardy, we are waiving that. I wanted to put that on the record.” Proceeding pro se, Jackson appeals from the judgment of conviction entered on his guilty plea. In two related enumerations, he contends his conviction for possession of cocaine is barred by the substantive aspects of double jeopardy. We affirm.

Decided November 6, 2000.

Ralph Jackson, Jr., pro se.

J. Gray Conger, District Attorney, for appellee.

1. Jackson did not seek to withdraw his guilty plea in the trial court, nor did he there assert that counsel was ineffective. Nor did he raise and attempt to prove his double jeopardy claim in the trial court. As a matter of federal constitutional law, Jackson’s “double jeopardy challenge is foreclosed by the guilty plea[ ] and the judgment! ] of conviction.” Specifically, because Jackson’s double jeopardy claim cannot be resolved on the face of the record, the limited exceptions authorizing collateral attack on the guilty plea do not apply.

2. Under state law, Jackson’s plea in bar was deficient, because neither the citation charging him with disorderly conduct nor the local ordinance he allegedly violated was made a part of the record. In Georgia, “[a] plea of former jeopardy which does not set forth a copy of the accusation on which it is alleged the accused was previously tried is fatally defective. [Cit.]” And Jackson’s attempt to add evidence by attaching the transcript of the recorder’s bind-over hearing and his receipt for payment of the disorderly conduct fine as exhibits to his brief is not an authorized method to supplement the record. We cannot take judicial notice of local ordinances and will not presume that the elements of disorderly conduct are in fact based on Jackson’s admitted possession of cocaine. Furthermore, Jackson’s reliance on Redding v. State is misplaced because, to the extent Red-ding stood for the proposition that this Court will review an alleged violation of the substantive bar against double jeopardy that was not raised and ruled on in the trial court, it was subsequently overruled. Consequently, Jackson’s double jeopardy claim was procedurally defaulted.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        United. States v. Broce, 488 U. S. 563, 565 (109 SC 757, 102 LE2d 927) (1989).

       Id. at 569 (II).

       (Punctuation omitted.) Honiker v. State, 230 Ga. App. 597, 598 (497 SE2d 70) (1998).

        Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994).

        Honiker v. State, supra, 230 Ga. App. at 598.

       188 Ga. App. 805 (374 SE2d 339) (1988).

        Edmonson v. State, 212 Ga. App. 449, 452 (3) (442 SE2d 300) (1994).


text:
    A00A2574.
    DIXON v. THE STATE.
    (541 SE2d 456)
   Miller, Judge.

A jury found Savickelly Dixon guilty of burglary and misdemeanor obstruction of an officer. In his sole enumeration of error, Dixon challenges the sufficiency of the evidence.

When reviewing a conviction for the sufficiency of the evidence, we determine whether, based on the evidence presented, a rational trier of fact could have found the defendant guilty of the charged offense beyond a reasonable doubt. The credibility of witnesses and the weight to be given their testimony are for the jury’s determination.

Viewed in the light most favorable to the jury’s verdict, the evidence showed that around 11:00 p.m., a Cox Communications employee working a late shift heard repeated noises and finally a loud bang coming from the basement of the building. Upon investigating, the employee discovered that a large metal door to a storage area was pried open and that the padlock was broken and on the ground. The employee called 911 and waited outside the building for officers to arrive. While he was waiting, the employee noticed a man in the bushes who twice stood up, looked at the employee, and squatted back down. The man stood up once again and ran toward the rear of the building. Once officers arrived, the employee advised them of the direction in which the man ran. The employee followed the officers around to the rear of the building where he again heard noises from another set of bushes, when the man once again came through the bushes running. The employee testified that this was the same man he had seen in the bushes earlier and whom he identified as Dixon.

The officers gave chase and ordered Dixon to stop. Dixon then swung a lug wrench that he was carrying at one of the officers. He was finally apprehended when one of the officers tackled him.

The Cox employee stated that the marks on the metal door looked as if they were made with the wrench that Dixon swung at one of the officers. A battery charger and fax machine were found in the bushes where Dixon was hiding. The fax machine was marked as property of Cox Communications. After Dixon was apprehended, one of the officers found a remote control from Cox Communications in Dixon’s front pocket and noticed that he was wearing gloves (in the month of May).

Dixon testified that he was walking down the street when one police car and then another pulled up beside him. He stated that the officers questioned him and told him that they were “going to have to take [him] down. . . .” Dixon further testified that one of the officers hit him over the head with a flashlight and that he was taken into custody. He claimed that at no time was he on Cox Communications’ property.

Decided November 6, 2000.

Mike L. Randolph, for appellant.

1. OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Here, evidence of Dixon’s failure to halt when officers ordered him to do so, and his swinging a lug wrench at an officer, sufficed to sustain his conviction for obstruction.

2. Dixon argues that there was insufficient evidence that he broke into Cox’s building, or that he was in possession of the items found in the bushes after his apprehension. Under OCGA § 16-7-1 (a), “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building. . . .” Evidence that Dixon (1) fled from officers, (2) carried a wrench that was consistent with the recent pry marks on the door, (3) was wearing gloves in May when apprehended, (4) was carrying a remote control belonging to Cox, (5) was in close proximity to the pried-open door, and (6) was seen in the same place where the fax machine and battery charger were found was sufficient to establish that Dixon entered the basement of the building, without authority, to commit a theft.

The jury, in assessing the weight of evidence against Dixon and his credibility, chose not to believe Dixon’s testimony. And we find the evidence sufficient to enable any rational trier of fact to find Dixon guilty of both burglary and obstruction beyond a reasonable doubt.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Charles H. Weston, District Attorney, Robert J. Lasseter, Howard Z. Simms, Assistant District Attorneys, for appellee.

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

        Sutton v. State, 210 Ga. App. 247-248 (1) (435 SE2d 748) (1993).

        Russell v. State, 243 Ga. App. 378, 382 (4) (532 SE2d 137) (2000); see Weidmann v. State, 222 Ga. App. 796, 797 (2) (476 SE2d 18) (1996) (flight from police apprehension is sufficient opposition to support an obstruction charge).

       See Davis v. State, 203 Ga. App. 227, 228 (2) (416 SE2d 771) (1992); see also Towns v. State, 185 Ga. App. 545, 546 (365 SE2d 137) (1988) (evidence in toto, including tool found outside building that was consistent with pry marks, was sufficient to sustain burglary conviction).


author: Smith, Presiding Judge.

text:
    A00A0956.
    WERNER v. THE STATE.
    (538 SE2d 168)
   Smith, Presiding Judge.

Nicholas Eric Werner appeals from the denial of his motion for new trial after he was found guilty by a jury and sentenced for driving under the influence of alcohol to the extent that he was a less safe driver. He contends the trial court erred in admitting certain evidence and in its charge to the jury. We find no merit in Werner’s contentions, and we affirm the judgment.

Viewed in favor of the jury’s verdict, the evidence presented at trial showed that Werner was stopped at a roadblock in DeKalb County. An officer serving with the DeKalb County Police Department’s Strategic Traffic Accident Reduction (“STAR”) team observed Werner’s vehicle traveling at high speed. Werner did not slow as he approached the checkpoint, even though it was clearly marked with signs and four police cars with flashing blue lights. He crossed the centerline, moved back into the right lane, and finally slowed.

The officer asked Werner for his driver’s license and proof of insurance. While speaking to Werner, the officer noticed a moderate odor of alcohol. When asked if he had anything to drink, however, Werner replied that he had not and would take any test the officer requested. Werner was then asked to pull off to the side for field sobriety tests. Once Werner exited his vehicle, the officer still noticed the odor of alcohol on his breath.

The officer administered several field sobriety tests, including the horizontal gaze nystagmus test (HGN), reciting the alphabet, and the alco-sensor. The officer noted six “clues” on the HGN, showing Werner to be under the influence of alcohol to the extent he was a less safe driver. Werner also “mixed up and inverted” several letters of the alphabet. He refused to submit to the alco-sensor test, stating that his college instructors had cautioned him not to take any breath tests.

Based upon Werner’s erratic driving, his statements at the scene, his physical manifestations of impairment, his poor performance on field tests, and his refusal to take an alco-sensor test, the officer arrested Werner for DUI. Because Werner had stated that he was under 21, the officer read him the Georgia Implied Consent Notice for Suspects Under the Age of 21. He requested that Werner take a state-administered breath test, which Werner again refused, citing the same instructors.

Werner made several pretrial motions. The trial court did grant Werner’s motion to suppress his custodial statement that he could not pass the breath tests because he had been drinking, but denied all other motions to suppress and in limine. Immediately before trial, Werner again moved in limine to limit the officer’s testimony regarding the HGN test and to exclude evidence of his age. The trial court did not rule on these motions, instructing Werner to make objections at the appropriate time during trial.

1. Although Werner concedes the officer could testify about the results of the HGN, he contends the trial court erred in allowing testimony as to the extent of his impairment based solely upon this test. We first note that this objection was not preserved for review. The trial court refused to rule in limine and instructed Werner to object at an appropriate time during the trial. In order to preserve this ground for appeal, therefore, Werner was required to make this specific objection at the time the evidence was offered. Ryans v. State, 226 Ga. App. 595, 597 (2) (487 SE2d 130) (1997); compare McClarity v. State, 234 Ga. App. 348, 349 (2) (506 SE2d 392) (1998) (if motion in limine is denied, losing party need not renew objection when evidence offered). In this case, the officer testified that he observed six clues when he administered the HGN to Werner and that four or more indicate a person is possibly a less safe driver. Werner objected, stating “we’d object based upon what we raised before. This test has never been recognized by Georgia courts regarding the testimony elicited by this officer.” This objection was overruled, and the officer continued his testimony. He testified, without objection, regarding the correlation between HGN and blood alcohol concentration, stating that “when the National Highway Traffic Safety Administration did their study, their percentages were four [sic] people at a point one zero and higher, and that was what they called the legal per se limit or to be over the legal limit.” The State then asked: “ [I]f you get four clues, it’s possibly a point one 0 or higher?” and the officer responded, without any objection: “That’s correct.” Even if we deem Werner’s original objection specific enough, because he did not then object to even more specific testimony, he has waived this ground on appeal.

Further, contrary to the statement in his brief, Werner did not request, nor was he granted, a continuing objection before remaining silent when the evidence was introduced. Trial counsel first requested a continuing objection at the beginning of the charge conference, noting that he “meant to do it” at the pretrial conference, but failed to do so. The trial court did not grant this request, responding only: “That’s part of the record.” This was insufficient.

Of course, even if counsel timely objects to certain testimony, its admission is not error where substantially the same evidence is subsequently admitted without objection. However, error can be enumerated upon subsequently introduced testimony if a continuing objection was interposed in the first instance. Continuing objections eliminate the need to repeat an objection where the trial court’s ruling on the first objection clearly covers subsequent proceedings and the court has granted a party the right to have a continuing objection. If the court does not specifically grant a right to a continuing objection, it is counsel’s duty to object to testimony as it is offered.

(Citations omitted; emphasis supplied.) State v. Larocque, 268 Ga. 352, 353 (489 SE2d 806) (1997). Werner did not have the right to assume that the court would later grant his request for a continuing objection after the evidence had been introduced. “It is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. [Cit.]” (Punctuation omitted.) Rupert v. State, 239 Ga. App. 128, 131 (1) (520 SE2d 695) (1999).

Moreover, even if this ground had been preserved, Werner’s argument has no merit. He argues that initially, the test was approved only as an indicator of the presence of alcohol. Manley v. State, 206 Ga. App. 281, 282 (424 SE2d 818) (1992). So much is true. But testimony regarding the test is not now limited to such use.

Field sobriety tests are not designed to detect the mere presence of alcohol in a person’s system, but to produce information on the question whether alcohol is present at an impairing level such that the driver is less safe within the meaning of OCGA § 40-6-391 (a) (1).

(Citations omitted.) Sieveking v. State, 220 Ga. App. 218, 219 (469 SE2d 235) (1996). “That these tests have no specific, quantitative value regarding the extent of a driver’s alcohol impairment would go to the weight to be given the tests and not their admissibility.” Hawkins v. State, 223 Ga. App. 34, 39 (1) (476 SE2d 803) (1996).

2. Werner maintains the trial court erred in allowing into evidence “irrelevant and inflammatory” testimony that he was under 21. But Werner also failed to object to the introduction of this evidence through the testimony of the officer. Although he interposed an objection to the admission into evidence of the implied consent card, which included a notice for suspects under 21, that objection was made solely on the ground that it was cumulative of the oral testimony given by the officer, and it was sustained. He cannot raise a different objection for the first time in this appeal. Dawson v. State, 238 Ga. App. 263, 268 (2) (518 SE2d 477) (1999).

3. Werner asserts that the trial court erred in its jury charge by instructing the jury that the testimony given by the police officer should be considered expert testimony when the State never offered him as an expert. This contention has been decided adversely to Werner. Wiley v. State, 238 Ga. App. 334, 335 (3) (519 SE2d 10) (1999); see also Hudson v. State, 175 Ga. App. 692, 693 (4) (334 SE2d 20) (1985). As the trial court noted in denying the motion for new trial, a trial judge has discretion to determine whether a witness possesses the learning and experience in a particular profession to be deemed an expert and to so instruct the jury even without a request. Wiley, supra; Hudson, supra. See Lindley v. State, 225 Ga. App. 338, 340-341 (484 SE2d 33) (1997) (trial court did not err in ruling that officer was expert witness notwithstanding lack of affirmative tender as expert witness).

The officer testified to his specialized training and experience in DUI detection. He testified to his experience as a DeKalb County police officer and a member of the DUI task force, the STAR team. He has assisted in instructing other officers in the use of field sobriety evaluations and has made over 1,300 DUI arrests. Based upon this testimony, the trial court tacitly considered the officer an expert witness. Because this was within the trial court’s discretion, we find no error.

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Werner argues that the trial court actually denied his motion in limine seeking to bar mention of his age, rather than failing to rule on it, and that he was therefore not. required to object at trial. We cannot agree.

The colloquy on this matter was extensive. Werner is correct that at one point, after repeated urging by Werner, the trial court uttered the word “denied.” Nevertheless, it remains absolutely clear that the court specifically instructed Werner that it was not about to rule on the motion before hearing evidence and that specific objection would be required at trial. The court stated:

I cannot rule on that evidence in a pre-trial setting. To the extent that that testimony comes up and you find it inappropriate, make your objection at the time the testimony comes. If I sustain the objection, then I will instruct the jury accordingly. But I cannot deal with it in a vacuum until I hear what the officer is going to testify to.

To allow Werner to rely upon the trial court’s “denial” of his motion to support his failure to object at trial, in the face of the trial court’s explicit instruction to him to object at trial, would completely frustrate the clear intent of the trial court’s ruling. We refuse to do so.

Decided August 10, 2000

Reconsideration denied November 7, 2000.

Chestney Hawkins Law Firm, Michael M. Hawkins, Sherry B. Lantz, for appellant.

Gwendolyn R. Keyes, Solicitor, Thomas E. Csider, Assistant Solicitor, for appellee.

Motion for reconsideration denied.


text:
    A00A1107.
    FLEMING v. U-HAUL COMPANY OF GEORGIA.
    (541 SE2d 75)
   Miller, Judge.

After John Nolan Fleming was arrested by DeKalb County police on an outstanding warrant for theft by conversion, he brought this pro se tort action against U-Haul Company of Georgia, alleging “false arrest, false imprisonment, malicious prosecution, etc.” “The et cetera is slander, defamation, separation from [Fleming’s] daughter, emotional distress, harm[ ] to [his] name and [his] reputation.” He appeals from the grant of summary judgment against him as to all his claims.

Viewed in the light most favorable to Fleming, the evidence of record shows that in October 1997, Fleming rented a U-Haul truck in his own name from defendant’s Candler Road office in DeKalb County. Around 9:00 p.m., the truck broke down on Interstate 20 just past Candler Road. Fleming walked back to Candler Road and used a pay phone to call the 1-800 number on the rental agreement. He gave the operator his name, his location, and the contract number and was informed that “someone will be there.” An hour passed, and no one from U-Haul appeared, so Fleming walked back to the pay phone and called again. This time he was informed that it would be 30 to 40 minutes but that someone would come. Another hour passed, and no help arrived. Tired, hungry, and frustrated, Fleming left the keys in the truck (not in the ignition) and hitchhiked to his home in Stone Mountain.

Fleming never thought of “just walking up the road to the U-Haul Center that was right there on Candler Road . . . because [he was] supposed to be waiting . . with the truck. Although Fleming had left a cash deposit for the return of the truck, he never returned to the U-Haul office to close out this contract. He heard nothing further from the agency about this contract and had no further contact with U-Haul until February 1998, when he rented another vehicle without anyone mentioning the earlier incident.

While driving the second truck, Fleming was stopped by DeKalb County police for failure to maintain lane. After examining Fleming’s driver’s license and rental agreement, the officer informed him that there was an outstanding warrant for his arrest. Fleming was handcuffed and taken to jail, where he spent eight days before making an $850 cash bond. In July 1998, the grand jury indicted Fleming for theft by conversion for failing to return the truck in accordance with the rental agreement. The conversion charge was dismissed in October 1998 because the “truck has been recovered [and U-Haul as the] victim does not wish to pursue the case any further.”

After discovery, U-Haul moved for summary judgment, supporting its motion with the deposition of Fleming and a certified copy of the grand jury indictment. The trial court granted the motion, concluding that (1) any action for malicious prosecution, false arrest, or false imprisonment is barred by the finding of probable cause inherent in the indictment and by Fleming’s failure to adduce any evidence of malice; (2) any claim for defamation is precluded by the privilege of reporting a suspected crime in good faith; and (3) U-Haul’s actions do not rise to that level of extreme or outrageous behavior that will support an action for the intentional infliction of emotional distress. Fleming enumerates the grant of summary judgment, arguing there are genuine issues of material fact remaining for jury resolution. Summary judgment appeals are de novo reviews.

1. An action for false imprisonment under OCGA § 51-7-20 cannot be maintained where the arrest was carried out pursuant to a valid warrant, no matter how corrupt the motives of the prosecutor or how unfounded the imprisonment may be. Where criminal process, valid on its face, has been maliciously sued out without probable cause, an action for malicious arrest or malicious prosecution is the only authorized remedy. As there is no contention here that the warrant under which Fleming was arrested was not valid, the trial court correctly granted summary judgment as to any claim for false imprisonment.

2. To make out a claim of false arrest under OCGA § 51-7-1 or malicious prosecution under OCGA § 51-7-40, the plaintiff must show both the presence of malice and the absence of probable cause. These actions are strictly guarded and never encouraged except in plain cases; otherwise, no one would willingly undertake to vindicate a breach of the public law and discharge the duty to society, faced with the prospect of an annoying suit. “There can be no recovery, even though the prosecution was malicious, if there was probable cause for it; and [even] if there was no probable cause, there can be no recovery if the prosecutor acted without malice. [Cits.]” The return of an indictment by the grand jury investigating the alleged offense is prima facie, but not conclusive, evidence of the existence of probable cause. But in order to be protected from liability for malicious arrest or malicious prosecution by the grand jury’s indictment, the prosecutor “must make a fair, full and complete statement of the facts as they exist. He is not relieved if he conceals facts, nor if he distorts facts, nor if he is negligent in ascertaining facts.”

Lack of probable cause shall exist when the circumstances are such as to satisfy a reasonable man that the accuser had no ground for proceeding but his desire to injure the accused. Lack of probable cause shall be a question for the jury, under the direction of the court.

The wording of these Code sections is not exhaustive of all cases of the absence of probable cause but “undertakes to settle an [extreme] instance in which the court and jury shall recognize the absence of probable cause.” While not conclusive, the dismissal of the criminal charge is some evidence that probable cause was lacking.

Here, the jury would be authorized to find that U-Haul negligently failed to ascertain the complete state of facts or recklessly failed to present them fully and fairly to the magistrate who issued the arrest warrant. The accuser’s good faith in swearing out the warrant would tend to negate malice but that is a question for the jury. Summary judgment on this record was in error because there is evidence to rebut the prima facie case of probable cause established by the indictment.

3. The trial court also concluded there was no evidence of malice. In this regard, Fleming admitted he had no evidence of any personal animosity toward him held by any U-Haul employee.

“Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” Malice may be inferred if defendant’s acts were wanton or were done with a reckless disregard for or conscious indifference to the rights of the plaintiff. Malice sufficient to sustain a recovery may be inferred from the want of probable cause. If a reasonable person would have investigated to determine if probable cause existed prior to swearing out a warrant, then such failure to make an investigation may imply malice, as well as go to whether probable cause existed.

In our view, a jury could infer malice by concluding that U-Haul wantonly disregarded Fleming’s rights in swearing out an arrest warrant for the theft of its broken-down rental truck that Fleming left just up the road from the Candler Road rental office, right where he informed U-Haul’s agents it was stalled, after the twice-promised roadside assistance never materialized. Based on the record before us, the trial court’s grant of U-Haul’s motion as to Fleming’s claim for false arrest or malicious prosecution was in error.

4. The trial court further erred in concluding that any action for defamation was precluded by the privilege of reporting a suspected crime in good faith.

Reporting a suspected crime is a conditionally privileged communication under OCGA § 51-5-7 (1) and (2) as both public and private legal and moral duties. Whether the privilege is a complete defense to an allegedly defamatory communication is generally a question of fact for the jury and depends on the intention with which it was published. “If in good faith, with the sole purpose of protecting the interest of the defendant, it would be; if maliciously, for the purpose of injuring the reputation of the plaintiff, it would not be.” Specifically,

[i]f the time and place and person are all appropriate, but the manner and form of the communication are such as to indicate, not a desire to vindicate the law, but to injure and defame the person whose name is disclosed in the communication, the privilege does not exist. The privilege is given by the law for a wise purpose, and the law will not tolerate its being used to vent the malice of any individual, even though he may be one[, like U-Haul in this case,] who thinks he has been grievously wronged.

In light of the circumstances authorizing a finding of malice, the material question of whether U-Haul’s agent exercised good faith in stating fully and fairly the facts that led to the arrest warrant against Fleming for theft must be submitted to the jury.

5. The circumstances authorizing a finding of malice do not necessarily authorize a finding that Fleming’s arrest for theft by conversion constituted such extreme and outrageous acts as to support an award for the intentional infliction of emotional distress.

It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by malice, or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

Decided October 19, 2000

Reconsideration denied November 7, 2000

Herbert P. Schlanger, for appellant.

John Fleming, pro se.

Saveli & Williams, William E. Turnipseed, for appellee.

In our view, a rational and impartial jury could decide that it is both atrocious and utterly intolerable in a civilized society for the lessor of a valuable motor vehicle to demand the arrest of its lessee for conversion, simply because the lessee did not return the vehicle to the designated place at the designated time and did not return to claim a cash deposit, where, as in this case, the lessor has imputed knowledge of all the additional and extenuating circumstances as reported by Fleming to the 1-800 operator. The trial court erred in concluding as a matter of law that the facts authorized by this record do not rise to the requisite level of outrage and egregiousness in character, and extremity in degree, that no reasonable person is expected to endure. The grant of summary judgment as to Fleming’s claim for the intentional infliction of emotional distress was also in error.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Mikell, J., concur.

        Contract Harvesters v. Mead Coated Board, 239 Ga. App. 853 (522 SE2d 260) (1999).

        Grist v. White, 14 Ga. App. 147, 150-151 (2) (80 SE 519) (1914).

        McLeod v. Pruco Life Ins. Co., 215 Ga. App. 177, 179 (1) (449 SE2d 895) (1994).

       An inquiry of the accused before a committing court or justice of the peace (now the magistrate) amounts to a prosecution. OCGA § 51-7-42; Page v. Citizens Banking Co., 111 Ga. 73, 84 (4) (36 SE 418) (1900).

        Coleman v. Allen, 79 Ga. 637, 640 (1) (5 SE 204) (1888).

        Ventress v. Rosser, 73 Ga. 534, 541 (3) (1884).

        Ga. Loan & Trust Co. v. Johnston, 116 Ga. 628, 630 (43 SE 27) (1902).

        Darnell v. Shirley, 31 Ga. App. 764, 765 (7) (a) (122 SE 252) (1924).

        Hicks v. Brantley, 102 Ga. 264, 273 (2) (29 SE 459) (1897).

       OCGA §§ 51-7-3; 51-7-43.

       Compare Darnell v. Shirley, supra, 31 Ga. App. at 765 (5), where this Court, interpreting § 4440 of the Civil Code (1910), held that want of probable cause “exists only ‘when the[se] circumstances . . .’” obtain. (Emphasis supplied.)

        Coleman v. Allen, supra, 79 Ga. at 641 (1).

        Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) (282 SE2d 393) (1981).

       With certain exceptions not applicable here,
      “[t]he law imputes to the principal, and charges him with, all notice or knowledge relating to the subject-matter of the agency which the agent acquires or obtains while acting as such agent and within the scope of his authority. . . . The rule does not depend . . . upon the fact that the agent has disclosed the knowledge or information to his principal; subject to the exceptions named, the law conclusively presumes that he has done so, and charges the principal accordingly.”
      (Emphasis in original.) German American Mut. Life Assn. v. Farley, 102 Ga. 720, 738 (2) (29 SE 615) (1897). Consequently, U-Haul is deemed to have knowledge of all the pertinent information, including the location and status of the stalled vehicle on Candler Road near the rental agency, that Fleming communicated to the 1-800 operator.

        Hicks v. Brantley, supra, 102 Ga. at 269 (2).

       OCGA § 51-7-2.

        Willis v. Brassell, 220 Ga. App. 348, 352 (3) (469 SE2d 733) (1996).

        Hicks v. Brantley, supra, 102 Ga. at 268 (1). Accord Stuckey v. Savannah, Fla. &c. R. Co., 102 Ga. 782, 784 (29 SE 920) (1898) (where plaintiff “shows a total want of probable cause, malice will be inferred without proof.”) (emphasis supplied).

        Medoc Corp. v. Keel, 166 Ga. App. 615, 618 (2) (305 SE2d 134) (1983) (decision of bar manager to initiate criminal proceeding for theft against patron without investigation “served as proof of malice, independent of any inference drawn from a total want of probable cause. . . .”). Accord Nicholl v. Great A & P Tea Co., 238 Ga. App. 30, 33 (1) (517 SE2d 561) (1999) (physical precedent only).

        Melton v. LaCalamito, supra, 158 Ga. App. at 824 (2) (c) and cits.

       U-Haul has not attempted to disprove that Fleming used the 1-800 number to inform a responsible person that the rental truck had stalled.

        McGonagil v. Treadwell, 216 Ga. App. 850, 854 (2) (456 SE2d 260) (1995).

        Ventress v. Rosser, supra, 73 Ga. at 539. See also Fedderwitz v. Lamb, 195 Ga. 691, 692 (25 SE2d 414) (1943) (what is mentioned in Code section 51-5-7 deals with cases of conditional privilege only).

        Zielinski v. Clorox Co., 270 Ga. 38, 40 (1) (504 SE2d 683) (1998).

       (Emphasis supplied.) Holmes v. Clisby, 118 Ga. 820, hn. 2 (45 SE 684) (1903).

        Gillis v. Powell, 129 Ga. 403, 409 (5) (58 SE 1051) (1907).

        Holmes v. Clisby, supra, 118 Ga. 820. Accord Kennedy v. Johnson, 205 Ga. App. 220, 223 (3) (421 SE2d 746) (1992).

       (Punctuation omitted.) Bowers v. Estep, 204 Ga. App. 615, 618 (2) (420 SE2d 336) (1992), citing Restatement (Second) of Torts, § 46, comment d.

       See K-Mart Corp. v. Lovett, 241 Ga. App. 26, 28-29 (3) (525 SE2d 751) (1999) (loss control manager’s admission that she never saw plaintiff shoplift but nevertheless swore out a warrant knowing it would result in plaintiff’s immediate arrest authorized jury’s verdict for intentional infliction of emotional distress). Compare Carruth v. Roberts, 189 Ga. App. 247, 250 (4) (375 SE2d 499) (1988).


author: Phipps, Judge.

text:
    A00A1147.
    CORNWELL v. THE STATE.
    (541 SE2d 101)
   Phipps, Judge.

Joseph D. Cornwell was convicted by a jury of attempting to elude a police officer and speeding. He claims that the trial court erred in refusing to charge the jury that “the jury shall be the judges of the law and the facts.” He also challenges the sufficiency of the evidence to support his conviction for attempting to elude a police officer. We find no merit in either claim and affirm.

On March 13,1999, at 5:00 a.m., Cobb County Police Officer Robert Littler noticed a black Land Rover, driven by Cornwell, traveling at a high rate of speed on Interstate 75. He was able to catch up to Cornwell and followed him at a distance of approximately 150 feet as he exited onto 1-575. Officer Littler estimated that, at one time, Cornwell was traveling at just over 100 mph.

After following the vehicle for three and one-half to four miles, Officer Littler activated his blue lights. Cornwell’s only response was to brake and slow down to about 50 or 60 mph. Approximately three-fourths of a mile later, Cornwell turned on his right turn signal and began driving in the emergency lane at approximately 30 or 40 mph. Officer Littler activated his siren at that point in another attempt to get Cornwell to stop. Cornwell continued for about a half-mile in the emergency lane. Officer Littler then pulled up beside him, and Cornwell finally stopped.

Cornwell testified that he was scared when Officer Littler began following him, before he realized that it was a police officer. Cornwell testified that, when Officer Littler turned on his blue lights, he began slowing down gradually and decided that he would stop at the next exit, which was near his residence. Cornwell wanted to reach a well-lit area because he was mistrustful of the police based on his experiences growing up in a rough neighborhood in Los Angeles. He testified that he would not have stopped when he did except that he thought Officer Littler was going to hit his vehicle.

1. During its deliberations, the jury submitted the following question: “If the jury disagrees with the law that we have been charged with applying to the facts of this case, can we find the defendant not guilty for that reason?” Cornwell’s lawyer asked the court to respond with this quote: “the jury shall be the judges of the law and the facts.” The court asked the jury foreman to clarify the question. Did the jury intend to ask if they could find the defendant not guilty because they disagreed with or did not like the law? Or did their question mean that the jury did not believe that the law given to them applied to the facts as they found them in this case? The foreman stated that the first interpretation was more accurate.

Based on the jury's response and relying on State v. Freeman, the trial court refused to give the instruction Cornwell requested. Instead, the court charged the jury in the language of the suggested pattern jury instructions promulgated by the Council of Superior Court Judges:

Decided October 24, 2000

Reconsideration denied November 7, 2000

Louis Levenson, for appellant.

[M] embers of the jury, it is my duty . . . and . . . responsibility to ascertain the law applicable to this case and to instruct you on that law by which you are bound. It is your responsibility to ascertain the facts of the case from all the evidence presented. It then becomes your duty and responsibility to apply the law that I give you in the charge to the facts as you find them to be.

That charge is a correct statement of the law and an appropriate response to the jury’s question. It was not error to refuse Cornwell’s requested charge.

2. Cornwell challenges the sufficiency of the evidence to support his conviction for attempting to elude a police officer. Pursuant to OCGA § 40-6-395 (a), it is unlawful for a driver “willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.” Cornwell claims that the State failed to establish that his refusal to stop was wilful.

“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.” There is no dispute that Cornwell did not stop his vehicle after Officer Littler activated his blue lights and siren. Cornwell testified that he had no intention of stopping before the next exit until he became worried that Officer Littler might hit his vehicle. Because a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm.

Judgment affirmed.

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

Barry E. Morgan, Solicitor, Katherine L. Kissam, Lawrence J. Lorusso, Assistant Solicitors, for appellee.

       Ga. Const., Art. I, Sec. I, Par. XI; OCGA § 17-9-2.

       264 Ga. 276 (444 SE2d 80) (1994).

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1991), p. 9.

        Parker v. State, 270 Ga. 256, 258 (3) (507 SE2d 744) (1998).

       (Citation omitted.) Davidson v. State, 237 Ga. App. 580, 581 (2) (516 SE2d 90) (1999).

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

       But see Johnson v. State, 246 Ga. App. 197, 199 (2) (540 SE2d 212) (2000) (evidence insufficient where entire encounter with officer conducted at slow rate of speed and driver stopped within five to ten seconds after officer activated his siren).