text:
    A14A0450.
    HAMMILL v. THE STATE.
    (758 SE2d 336)
   BARNES, Presiding Judge.

This case arises out of the collision of two jet skis on Lake Lanier. The collision occurred when the defendant, Taylor Whitfield Ham-mill, struck the other jet skier from behind at a speed of 30 to 40 mph. Based on evidence that Hammill had been consuming alcohol and operating his jet ski in a reckless manner, a jury found him guilty of two counts of serious injury by vessel, one count of reckless operation of a vessel, and one count of operating a vessel under the influence of alcohol. The trial court subsequently denied Hammill’s motion for new trial, and this appeal followed. Hammill maintains on appeal (1) that the State failed to prove proximate cause, an essential element of the offense of serious injury by vessel; (2) that the trial court erred in limiting his counsel’s recross-examination of an officer about whether Hammill had refused a State-administered blood test; (3) that the prosecutor improperly commented in the presence of the jury on his right not to testify and incriminate himself; (4) that the trial court erred in denying his motion for mistrial or in failing to give a curative instruction when the prosecutor allegedly made an improper remark in closing argument regarding Hammill’s refusal to submit to a State-administered breath or blood test; and (5) that the trial court erroneously charged the jury on the inference that could be drawn from his refusal to submit to a State-administered breath or blood test. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that Hammill, the victim, and the victim’s boyfriend were college friends. On Saturday, July 25, 2009, they decided to go to Lake Lanier, where the parents of the victim’s boyfriend owned a lake house.

They arrived at the lake house around 1:00 p.m. and went down to the dock by the lake, where they stayed for several hours. According to the victim, her boyfriend and Hammill brought two 24-packs of beer and a bottle of vodka with them to the lake house. While on the dock, everyone began drinking the beer, and the victim testified that her boyfriend and Hammill were drinking “a lot, pretty fast.” The victim’s boyfriend also got out the bottle of vodka and poured it into slices of watermelon, and everyone began to eat the watermelon “infused with vodka.”

The parents of the victim’s boyfriend who owned the lake house came down to the dock and also were drinking alcohol. The boyfriend’s father owned two jet skis. When Hammill and the victim’s boyfriend asked if they could take the jet skis out on the lake, the mother responded, “Absolutely not, they’re not insured, and you’ve been drinking.” But when the mother left the dock to go back to the lake house, the father gave them permission to ride the jet skis as long as they brought them “right back.”

The victim, her boyfriend, and Hammill rode the jet skis out to a small island on the lake with a beach area, where they played horseshoes and continued to drink beer. After about 20 minutes, they decided to return to the lake house. The victim was driving one of the jet skis with her boyfriend as her passenger, while Hammill drove the other jet ski. According to the victim, even though the water was choppy, Hammill was driving the other jet ski “ridiculously fast,” was sticking out his tongue, making faces and “doing little silly signs” with his hands, and was swerving back and forth across the water near the victim and her boyfriend. At one point, Hammill came within “arm’s length” of the victim and her boyfriend’s jet ski, and the victim told her boyfriend, “[H]e’s too close. Tell him to back off. It’s freaking me out.” The victim’s boyfriend then waved his hand back at Hammill in an effort to get him to slow down.

As they continued back to the lake house on the jet skis, the victim’s jet ski hit a wave, and her boyfriend fell off. The victim stopped her jet ski so that her boyfriend could swim over and get back on. While the victim’s jet ski was stopped in the water, Hammill collided with it and struck the victim in the head, causing her to fall into the water unconscious. The collision occurred in a portion of the lake in Forsyth County.

The victim’s boyfriend and Hammill flagged down a pontoon boat, and together with the boat owner they were able to get the victim into the boat and back over to the shore. A bystander on the shore called 911, and Forsyth County emergency response personnel were dispatched to the scene and transported the victim to the hospital, where she underwent two brain surgeries and remained unconscious for approximately two months as a result of the brain trauma she had suffered. The victim subsequently went through months of speech, occupational, physical, and cognitive therapy. Ultimately, the victim returned to college, and she was able to recall the events that had transpired at the lake because she did not suffer any long-term memory problems.

While the victim was transported to the hospital, an officer assigned to the law enforcement section of the Georgia Department of Natural Resources (“DNR”) who had been dispatched to the scene began his investigation of the collision and spoke with Hammill on a nearby dock. The DNR officer took photographs of the jet skis and video-recorded his investigation and interaction with Hammill using a “pin cam” that he wore. As a result of his investigation, including his examination of the damaged jet skis, the officer determined that Hammill had been traveling between 30 to 40 mph when he struck the rear side of the victim’s j et ski. The officer further determined that Hammill collided with the victim’s jet ski with such force that his jet ski traveled over the top of it and struck the victim directly in the head.

As part of his investigation, the officer also found an empty beer can on the jet ski driven by Hammill. Moreover, while speaking with Hammill, the officer noticed that he smelled strongly of alcohol, that his eyes were red and glassy, that his speech was slurred, and that he was unsteady on his feet. After obtaining Hammill’s consent, the officer performed several field sobriety tests for boaters approved by the United States Coast Guard for use in water-related environments: the horizontal gaze nystagmus (“HGN”) test, the recitation of the alphabet and counting tests, and the hand-pat and finger dexterity tests. Hammill exhibited six out of six clues of impairment on the HGN test, had trouble reciting the alphabet and counting backward, and failed to follow the directions in performing the hand-pat and finger dexterity tests. The officer also asked Hammill to submit to a preliminary alco-sensor breath test, but he refused. Hammill admitted to the officer that he drank four or five beers that day before the collision, but he told the officer that he did not want anything in writing stating that the collision had been caused by his drinking because he did not feel that he had been impaired by his alcohol consumption.

Based on his training and experience, his observations of Ham-mill, and Hammill’s performance on the field sobriety tests, the officer concluded that Hammill was under the influence of alcohol to the extent that it was less safe for him to operate the jet ski and placed him under arrest. The officer read the Georgia implied consent warning for persons over the age of 21 to Hammill and requested that he take a State-administered breath test and blood test. According to the officer, he planned to take Hammill to the jail first for the breath test and, if the test was not positive for alcohol, then to the hospital for a blood test. Hammill initially did not respond to the officer’s request but later refused to take the breath test on the Intoxilyzer 5000 at the jail. At that point, the officer decided not to take Hammill to the hospital for a blood test because “he had already refused the first test.”

Hammill was indicted and tried before a jury on two counts of serious injury by vessel, one count of reckless operation of a vessel, and one count of operating a vessel while under the influence of alcohol. The State established the facts supporting its case as set out above through the testimony of the victim, the DNR officer, the emergency response personnel, and the hospital neurosurgeon who treated the victim. The State also introduced the photographs of the jet skis taken by the DNR officer and the video recording of the officer’s interaction with Hammill, including Hammill’s performance of the field sobriety tests and his refusal to take the alco-sensor breath test and the State-administered breath test at the jail.

In contrast, Hammill called as defense witnesses the victim’s boyfriend, the boyfriend’s parents, and the pontoon boat owner in an effort to show that he had not been impaired by alcohol or recklessly operating the jet ski. Hammill also called a defense expert in field sobriety testing in an effort to cast doubt on the manner in which the DNR officer had performed the field sobriety tests. Hammill elected not to testify.

After hearing the conflicting testimony and viewing the photographs and video recording, the jury found Hammill guilty of the charged offenses. Hammill filed a motion for new trial, which the trial court denied, resulting in this appeal.

1. Challenging the sufficiency of the evidence, Hammill contends that his convictions for serious injury by vessel must be reversed because the State failed to prove the essential element of proximate cause. According to Hammill, there was evidence that the victim was negligent on the day of the jet ski collision because she drank alcohol before driving her jet ski, she was driving fast despite the choppy condition of the water, and she stopped her jet ski suddenly after her boyfriend fell off of it. Hammill maintains that the victim’s own negligence was an intervening cause that broke the chain of causation, relieving him of criminal liability for the victim’s injuries resulting from the jet ski collision. We are unpersuaded.

An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the act.

(Citation omitted.) McGrath v. State, 277 Ga. App. 825, 828-829 (1) (627 SE2d 866) (2006). In the criminal context, “as long as the defendant’s negligence proximately caused the injury of another, the crime has been committed, even if there are other factors which also are proximate causes of the injury.” Baysinger v. State, 257 Ga. App. 273, 273-274 (1) (570 SE2d 593) (2002). Hence, “it simply is not relevant that the victim was negligent unless the defendant’s conduct did not substantially contribute to the cause of the injury.” Id. at 274 (1). Moreover, it is well established that proximate cause is ordinarily a question for the jury. Dunagan v. State, 283 Ga. 501, 505 (661 SE2d 525) (2008).

Here, the State presented evidence that Hammill struck the victim’s jet ski directly from behind while traveling between 30 to 40 mph, such that Hammill’s jet ski traveled over the top of the victim’s jet ski and struck the victim directly in the head. There was no evidence that he made any attempt to turn or avoid the collision. Furthermore, the State presented evidence that Hammill was under the influence of alcohol when he was driving his jet ski, that he was following the victim’s jet ski too closely at a high rate of speed, and that he was sticking out his tongue, making faces, and gesturing with his hands rather than focusing on his surroundings. Given this trial record, the State clearly came forward with sufficient evidence to authorize the jury to find that Hammill’s conduct substantially contributed to, and thus was the proximate cause of, the victim’s injuries. See Corbett v. State, 277 Ga. App. 715, 717-719 (1) (b) (627 SE2d 365) (2006) (concluding that there was sufficient evidence that the defendant driver proximately caused the victim’s death, where there was evidence that the defendant was under the influence of alcohol and failed to take any evasive action upon seeing the victim standing in the middle of a dark roadway).

2. Hammill further argues that the trial court erred in restricting his counsel’s recross-examination of the DNR officer about whether he had refused a State-administered blood test. We disagree.

As previously noted, the DNR officer testified that he requested that Hammill take a State-administered breath test and blood test. According to the officer, Hammill initially did not respond to the request but later refused to take a breath test at the jail. Given that Hammill had refused the breath test, the officer chose not to transport him to the hospital for a blood test.

During cross-examination, defense counsel asked the officer if Hammill at any time had refused to take a blood test, and the officer responded, “He didn’t need to; he had already refused the first test.” On redirect examination, the prosecutor asked the officer additional questions relating to the issue of the blood test, and then on recross-examination, defense counsel again asked the officer if Hammill at any time had refused to take a blood test. The prosecutor objected to defense counsel’s question on the ground that it had already been asked and answered, and the trial court sustained the objection, which Hammill now contends was reversible error.

A trial court has broad discretion in determining the scope of cross-examination and recross-examination. See Hopson v. State, 281 Ga. App. 520, 521 (1) (636 SE2d 702) (2006). In exercising its broad discretion in this area, a trial court is “authorized to exclude cumulative questioning on matters that [have] already been covered.” Littlejohn v. State, 320 Ga. App. 197, 205 (4) (739 SE2d 682) (2013). Thus, the trial court is authorized to limit the scope of recross-examination if the same matter was already explored in defense counsel’s cross-examination. See Hopson, 281 Ga. App. at 522 (1) (a).

Based on these principles, the trial court did not abuse its discretion in this case. The question that defense counsel sought to ask the DNR officer on recross-examination about the blood test had already been asked and answered during his cross-examination. Because any response to the question would have been cumulative in nature, the trial court acted within its discretion in sustaining the prosecutor’s objection to the question and limiting the scope of the recross-examination of the officer. See Hopson, 281 Ga. App. at 522 (1) (a).

3. Hammill also maintains that the prosecutor improperly commented in the presence of the jury on his right not to testify and incriminate himself, and that the trial court should have granted him a new trial as a result. Again, we disagree.

During the cross-examination of the DNR officer, defense counsel attempted to inquire about a statement made by Hammill to the officer in which he asserted that his alcohol consumption was not the cause of the jet ski collision. The question was part of a series of questions by defense counsel aimed at showing that the officer had left certain exculpatory statements made by Hammill out of his arrest report even though the statements could be heard on the video recording from the officer’s “pin cam.” The prosecutor objected to the question, arguing that Hammill’s statement was self-serving and that if Hammill “wants it in he can come testify about it.” The trial court overruled the prosecutor’s objection to the question on the ground that Hammill’s statement was already in evidence, given that the video recording in which the statement could be heard had previously been introduced into evidence and played for the jury.

Hammill argues that the prosecutor’s remark that if he “wants it in he can come testify about it” was an improper comment on his right not to testify and incriminate himself. Notably, however, defense counsel did not object to the prosecutor’s remark at trial. Any objection to the remark thus has been waived for purposes of appeal. See Thomas v. State, 284 Ga. 647, 648 (2) (670 SE2d 421) (2008); Landers v. State, 270 Ga. 189, 190-191 (2) (508 SE2d 637) (1998).

In any event, the prosecutor’s remark was not improper. Under Georgia law,

a prosecutor may not comment upon a defendant’s failure to testify at trial. A criminal defendant alleging a violation of this rule establishes reversible error if the prosecutor’s manifest intention was to comment on the accused’s failure to testify or 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.

(Citations and punctuation omitted.) Lacey v. State, 288 Ga. 341, 344 (4) (a) (703 SE2d 617) (2010).

Reading the challenged remark by the prosecutor in context, we conclude that the remark was not intended as a comment on Ham-mill’s decision not to testify and was unlikely to be interpreted by the jury as such a comment. Rather, the prosecutor’s remark was made as part of an evidentiary objection and argument between counsel over whether Hammill’s alleged self-serving statement was admissible if he elected not to testify. See generally Mathis v. State, 265 Ga. App. 541, 544 (2) (c) (594 SE2d 737) (2004) (“Self-serving declarations are inadmissible hearsay unless the declarant testifies and is subject to cross-examination. The defendant is allowed to declare his innocence in court; he is not allowed to avoid this opportunity by pre-trial declarations of innocence.”) (citations and punctuation omitted). For this reason, the prosecutor’s remark is reasonably construed as nothing more than a comment pertaining to the admissibility of certain evidence, and, as such, provides no basis for a new trial in this case. See Locke v. State, 238 Ga. App. 705, 707-708 (2) (521 SE2d 587) (1999).

4. Hammill contends that the trial court erred in denying his motion for mistrial or in failing to give a curative instruction when the prosecutor allegedly made an improper remark in closing argument regarding the inference that could be drawn from his refusal to submit to a State-administered breath or blood test. We are unpersuaded.

Under Georgia law, the refusal of a criminal defendant to submit to a State-administered breath, blood, or urine test for determining alcohol or drug content “itself may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance.” Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988). But the refusal to take such a test does not, “by itself,” support an inference of impairment. Baird v. State, 260 Ga. App. 661, 663 (1) (580 SE2d 650) (2003). See Walker v. State, 239 Ga. App. 831 (521 SE2d 861) (1999); Brinson v. State, 232 Ga. App. 706, 707 (503 SE2d 599) (1998) (physical precedent only). In contrast, the refusal to take the State-administered test, “together with other evidence,” can support an inference that the defendant was an impaired driver. (Emphasis supplied.) Jones v. State, 273 Ga. App. 192, 194 (1) (b) (614 SE2d 820) (2005). See Hazley v. State, 289 Ga. App. 558, 559-560 (657 SE2d 628) (2008); Massa v. State, 287 Ga. App. 494, 495 (1) (651 SE2d 806) (2007); Hoffman v. State, 275 Ga. App. 356, 358 (1) (620 SE2d 598) (2005); Walker, 239 Ga. App. at 831.

During closing argument, defense counsel argued that the “only inference” that could be drawn from Hammill’s refusal to take the State-administered test was “that he had alcohol in his system.” In response, in his final closing argument, the prosecutor argued:

What other evidence of impairment do we have? He refused the tests. All right, [Defense Counsel] sat here and told you that you could only use the refusal of the test as evidence that there was alcohol in his system, and that, ladies and gentlemen, is not the case. It absolutely is not.
The judge will instruct you that methods of proving this offense that the driver was impaired, [that] the Defendant’s ability to drive was impaired[,] include the refusal to take field sobriety tests and the . . . breath or blood tests.

Defense counsel objected at that point and moved for a mistrial on the ground that the prosecutor had misstated the applicable law. The trial court overruled the objection, and the prosecutor continued his argument:

[Hammill] refused the tests. That is evidence of impairment. It’s circumstantial evidence and it needs to be taken with other evidence in order to come to a conclusion of impairment, but it is evidence.

(Emphasis supplied.)

Hammill argues on appeal that the prosecutor misstated the law regarding the inference that could be drawn by his refusal to submit to a State-administered test for the presence of alcohol, and that the trial court thus should have sustained his objection and granted a mistrial or issued a curative instruction. “In passing upon objections or motions on account of improper argument, the judge is vested with a sound discretion, and his ruling thereon will not work a new trial unless it manifestly appears that his discretion was abused.” (Citation and punctuation omitted.) Bruce v. State, 142 Ga. App. 211, 214-215 (6) (235 SE2d 606) (1977). Furthermore, “[i]t is fundamental that harm as well as error must be shown for reversal” based on an alleged improper comment made by a prosecutor during closing argument. (Punctuation and footnote omitted.) Wright v. State, 319 Ga. App. 723, 731 (3) (a) (738 SE2d 310) (2013).

Decided May 30, 2014

Reconsideration denied June 17, 2014

McFarland & McFarland, R. Parker McFarland, Jr., for appellant.

Penny A. Penn, District Attorney, Michael S. Mahoney, Assistant District Attorney, for appellee.

Here, following defense counsel’s objection, the prosecutor ultimately clarified to the jury that Hammill’s refusal to take a State-administered test “needfed] to be taken with other evidence in order to come to a conclusion of impairment.” This clarification by the prosecutor was consistent with our case law reflecting that a defendant’s refusal to take a State-administered test “together with other evidence will support an inference that he was an impaired driver.” (Citation and punctuation omitted.) Hazley, 289 Ga. App. at 559-560. See Massa, 287 Ga. App. at 495 (1); Hoffman, 275 Ga. App. at 358 (1); Jones, 273 Ga. App. at 194 (1) (b); Walker, 239 Ga. App. at 831. In light of this clarification of the law by the prosecutor, we conclude that any error in the earlier statements by the prosecutor was rendered harmless. Accordingly, we find no prejudicial error.

5. Hammill also asserts that the trial court erroneously charged the jury on the inference that could be drawn from his refusal to submit to a State-administered breath or blood test. According to Hammill, the multi-paragraph charge was internally contradictory and “must have confused the jury.” We do not agree.

The jury charge at issue here is the same charge (albeit adapted for boating) that was given in Crusselle v. State, 303 Ga. App. 879, 882 (2) (694 SE2d 707) (2010). In that case, we concluded that the charge, when read and considered as a whole, “substantially present [ed] [the] issues in such a way as [was] not likely to confuse the jury” and provided no basis for reversal. (Punctuation and footnote omitted.) Id. at 883 (2) (b). In light of our decision in Crusselle, we conclude that the trial court did not err in its charge to the jury.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Because the present case was tried before January 1, 2013, the new Georgia Evidence Code does not apply to any of the evidentiary issues addressed in this opinion. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1,2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).

       The officer testified that he did not perform the one-leg stand or walk-and-turn tests because a person’s equilibrium can be affected by operating a watercraft to the extent that it impacts his or her performance on those two tests. The officer also noted that it can be difficult to find sufficiently level places to perform those two tests near a lake.

       It is unlikely that the exclusion of “self-serving” statements established by Georgia precedent survived the adoption of the new Evidence Code. See OCGA §§ 24-8-803; 24-8-804; State v. Hodges, 291 Ga. 413, 423 (2), n. 6 (728 SE2d 582) (2012) (Nahmias, J., concurring specially) (pointing out that “the blanket policy against ‘self-serving’ statements, established by our case law, may not survive” adoption of the new Evidence Code). See also Paul S. Milich, Georgia Rules of Evidence § 16:9 (2013) (noting that the new Evidence Code “leaves no room for excluding hearsay that otherwise qualifies for an exception simply because it is ‘self-serving.’ ”).

       We note that although the jury receives the law from the trial court, counsel may read and comment on the law that will be charged to the jury as part of closing argument. See Amaya v. State, 308 Ga. App. 460, 464 (3) (708 SE2d 28) (2011).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A0304.
    COLLINS v. THE STATE.
    (760 SE2d 606)
   Branch, Judge.

Following a stipulated bench trial, Camela Noelle Collins was found guilty on one count of failure to maintain her lane and two counts of driving under the influence of alcohol, one each for DUI less safe (OCGA § 40-6-391 (a) (1)) and DUI per se (OCGA § 40-6-391 (a) (5)). The trial court merged the DUI per se count into the DUI less safe count for purposes of the conviction and sentence. Collins appeals and raises three enumerations of error, all of which pertain to the measurement of her breath-alcohol concentration by the Intoxilyzer 5000, evidence of which was introduced at her trial. Because no conviction was entered on the count of DUI per se, Collins’s assertions of error are moot or any error is harmless, and we affirm.

The case was submitted to the court based on stipulated evidence. Collins and the State stipulated that if Rockdale County Deputy Lawrence Reed were called to testify at trial, he would testify that at 3:48 a.m. on May 17, 2007, he initiated a traffic stop of Collins’s vehicle after he witnessed her make a wide right turn and cross over the centerline and fog line at least three times. While speaking with Collins, Reed detected the strong odor of alcohol, and he observed that her eyes were watery and her speech was “thick-tongued”; Collins denied having consumed any alcohol that evening. When asked to step out of the vehicle, Collins had difficulty putting on her shoes, and she was unsteady on her feet. When asked to perform field sobriety tests, Collins was unable to follow instructions not to start the individual tests until Reed instructed her to do so; on the nine-step walk and turn test, Collins was unable to walk heel to toe as requested, could not maintain a straight line, did not take nine steps as instructed, and swayed and was unsteady on her feet during the test; on the one-leg stand test, she lost her balance and had to place her foot on the ground. When asked a second time about alcohol consumption, Collins stated that she had consumed a few drinks but that she was not drunk and was capable of driving. A portable breath test registered positive for the presence of alcohol. Reed then arrested Collins, read her the Georgia implied consent notice, and transported her to the Rockdale County Jail where her breath was tested on the Intoxilyzer 5000. The machine indicated that Collins had a breath-alcohol concentration of 0.129. Collins did not request an independent test. The trial court also relied on evidence heard in earlier evidentiary hearings in the case, including Collins’s admission that she had consumed three or four Crown Royal and ginger ale drinks that evening.

During her criminal case, in an attempt to secure production of the Intoxilyzer 5000 source code from the machine’s manufacturer in Kentucky, Collins filed a motion seeking a determination of materiality, relevance, and necessity of the Intoxilyzer 5000 source code under the Uniform Act to Secure the Attendance of Witnesses from Without the State (the “Uniform Act”), OCGA § 24-13-90 et seq. The trial court entered an order granting the motion and directing Collins to take the next steps required under the Uniform Act in a Kentucky court in order to obtain an out-of-state subpoena to secure the specific information requested. Collins contends that although she took the necessary steps in the Kentucky court, she was ultimately unable to obtain full and unencumbered access to the Intoxilyzer 5000 source code. She also contends she has appealed the Kentucky court’s decision and is awaiting a decision.

Nevertheless, the record shows that on May 2, 2012, Collins moved for a continuance in the present case and stated to the court that she “now has access to the source code of the Intoxilyzer 5000 pursuant to [the Kentucky court’s] Order.” She requested time to identify and hire an expert to review the source code, and she stated that she intended to complete the process within 90 days. The trial court granted the continuance. Five months later, however, Collins moved to exclude or suppress the breath test results, asserting violations of several constitutional rights. The trial court addressed the constitutional claims and denied the motion, in part because the trial court found that

the failure to examine the source code now appears to come, not from any obstacle erected by the State, this Court, or the Kentucky Court, but from Defendant’s own decision not to avail herself of the opportunity afforded by [signing a protective order as a prerequisite to obtaining access to the source code in the Kentucky court].

Subsequently, the Rockdale County trial court placed the case on its trial calendar.

Following presentation of the stipulated evidence, the trial court found Collins guilty on all three counts: failure to maintain lane, DUI less safe, and DUI per se. On November 29, 2012, the court entered judgment sentencing Collins to 12 months on both DUI counts. Later, however, the court amended the sentence nunc pro tunc to November 29,2012, to indicate that it sentenced Collins on only the count of DUI less safe; the count of DUI per se was “MERGED W/CT. 1.” The court denied Collins’s motion for new trial. In so doing, the court specifically rejected Collins’s argument “that the evidence of [her] breath alcohol concentration contributed to the Court’s finding of guilt of DUI less safe.”

On appeal, Collins asserts three enumerations of error: (1) the trial court violated her constitutional rights to due process and compulsory process by forcing her case to trial without the evidence she sought from the manufacturer of the Intoxilyzer 5000; (2) the trial court erred by denying her motion for new trial because she was in fact found guilty of both DUI counts and the blood-alcohol evidence affected the count of DUI per se; and (3) trial counsel rendered ineffective assistance of counsel by failing to admit into evidence “materials relating to the validity of the source code and the Intoxilyzer 5000 machine.” We conclude that these enumerations of error are moot and that any possible error is harmless.

Although Collins was found guilty on both DUI counts, she was only convicted of DUI less safe. See Slack v. State, 288 Ga. 659, 661 (2) (706 SE2d 447) (2011) (guilty verdicts are not the equivalent of convictions; where trial court merged two counts for which double jeopardy prohibited multiple convictions, count that was merged into the other “stood vacated by operation of law”) (citation omitted); Darville v. State, 289 Ga. 698, n. 1 (715 SE2d 110) (2011). See also Pough v. State, 325 Ga. App. 547, 548 (1) (754 SE2d 129) (2014) (vacating per se conviction and affirming less safe conviction where trial court entered a single sentence that applied to both counts and failed to indicate which count merged into the other). Thus, Collins was not convicted on the count of DUI per se. See, e.g., Durrance v. State, 319 Ga. App. 866, n. 1 (738 SE2d 692) (2013) (“[Defendant] was not convicted of the DUI less safe offense, however, because the trial court merged the offense into the DUI per se charge.”) (citation omitted). Accordingly, Collins’s assertions of error related only to that count are moot and any possible error is harmless. See, e.g., id. at 866, n. 2 (“Although Durrance also challenges the sufficiency of the evidence regarding the DUI less safe offense, his claim is rendered moot by the trial court’s merging of that count for sentencing.”) (citations omitted); Greene v. State, 312 Ga. App. 666, 671 (2) (722 SE2d 77) (2011) (anyfailure to charge jury on law predicated upon the DUI less safe count, which was merged into the DUI per se conviction, was harmless). Finally, in this case, the trial court specifically held that the breath-alcohol concentration evidence did not affect the court’s finding of guilt on the count of DUI less safe. See generally Evans v. State, 253 Ga. App. 71, 76 (2) (a) (558 SE2d 51) (2001) (“impaired driving ability depends solely upon an individual’s response to alcohol, regardless of his or her blood alcohol content”). Compare Kitchens v. State, 258 Ga. App. 411, 415 (1) (574 SE2d 451) (2002) (possible harm shown where “trial court, sitting without a jury, specifically relied on the [blood alcohol] test results in reaching its conclusion that [defendant] was a less safe driver”). Because all of Collins’s enumerations of error relate specifically to the count of DUI per se they are moot; furthermore Collins can show no harm with regard to her conviction of DUI less safe from any evidence related to the Intoxilyzer 5000. Her conviction of DUI less safe is therefore affirmed.

Decided June 17, 2014.

Ashleigh B. Merchant, for appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       “The ‘source code’ consists of human-readable programming instructions that play a role in controlling the internal calibration of the Intoxilyzer 5000 machine.” Cronkite v. State, 293 Ga. 476, 477, n. 2 (745 SE2d 591) (2013).

       The Uniform Act provides a statutory means to compel an out-of-state witness to testify at, or to bring relevant documents to, criminal proceedings in Georgia. Davenport v. State, 289 Ga. 399-400 (711 SE2d 699) (2011). See also Yeary v. State, 289 Ga. 394, 396 (711 SE2d 694) (2011) (“an out-of-state corporation may be ‘a person’ that is a material witness under the Uniform Act and may be determined to be in possession of material evidence”). Where the appellant seeks to obtain the source code for the Intoxilyzer 5000 from a corporation located in Kentucky, the Uniform Act applies. Yeary, 289 Ga. at 396-397. See also Young v. State, 324 Ga. App. 127, 129 (1) (749 SE2d 423) (2013). As of January 1, 2013, Georgia’s new Evidence Code has moved the provisions of the Uniform Act from former OCGA §§ 24-10-90 through 24-10-97 to current OCGA §§ 24-13-90 through 24-13-97.

       The applicable Uniform Act procedures are explained in the statute and in Davenport, 289 Ga. at 401-402.


text:
    A14A0420.
    SLAUGHTER v. THE STATE.
    (760 SE2d 609)
   Branch, Judge.

On appeal from his conviction for aggravated stalking, burglary, and criminal damage to property, Kenneth Slaughter argues that the evidence was insufficient and that the trial court erred when it refused to charge the jury on violation of a family violence order as a lesser included offense of aggravated stalking. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that after Slaughter and the victim began a romantic relationship online, Slaughter moved into the victim’s home in February 2010. After a few months, however, Slaughter stopped taking his prescription medication and began behaving erratically, blaming the victim for his problems and starting numerous arguments with her. In early July 2010, the victim ended the relationship but told Slaughter that he could stay in the home until his next hospital appointment in August “if he was civil.”

On July 12, 2010, the victim lent Slaughter her car while she remained at work. Driving the victim’s car, Slaughter appeared in the parking lot of the victim’s employer and drove in circles around other cars in the lot. When the victim went outside to give Slaughter money to take the bus home, he threw the money on the ground and “stormed off,” but remained in the area so that the victim was able to drive him back to her house at the end of her workday. That evening, after an altercation with Slaughter, the victim called police, who in turn obtained an ambulance that transported Slaughter to the hospital, from which he was ejected later that night. On the drive home with the victim, Slaughter began kicking the car’s dashboard and trying to grab the steering wheel, so the victim returned Slaughter to the hospital parking lot, left him there, retrieved some belongings from her house, and went to her sister’s house.

On July 14, 2010, the victim drove to her house and encountered Slaughter. She found damage on the ground floor including flooding, pulled-up carpet, dirt scattered on the underlying concrete floor, holes in the walls, and mirrors and a television smashed. One bathroom vanity had been destroyed, and a hole was knocked through an exterior wall. Although Slaughter told police that his laptop computer had been taken, none of Slaughter’s property had been damaged. While Slaughter remained in the house, the victim took photographs of the damage. She then left the house and called her mother, who advised her to obtain a protective order. On July 16, 2010, the victim obtained a temporary protective order under which Slaughter was “to stay away” from the victim’s residence and workplace, was “restrained and enjoined from approaching within 100 yards” of the victim herself, and was ordered “not to have any contact, direct, indirect, or through another person,” with the victim. The last page of the order specified that a violation of its terms “may be punished by arrest.” On the same afternoon, Slaughter was personally served with the order and escorted off the victim’s property.

When the victim and her mother returned to the victim’s home from work on the evening of July 16, they did so in the company of police because the victim “didn’t feel safe” around Slaughter without police protection. As the victim and her mother were outside in the company of a police officer, Slaughter opened the front door and came out of the house. After confirming that Slaughter had been served with the protective order, the officer arrested him for violating the terms of that order. Although Slaughter told the officer that he did not know how the house had been damaged, he showed the officer around the first floor, which now had holes punched in every wall, a space where the clothes dryer had been, water throughout, bathroom pipes broken, a gas can on the dining room table, and broken glass in the kitchen sink’s garbage disposal. Damage had also been done on the second floor of the house, and the exterior air-conditioning unit, had been overturned, pulling wiring out of the exterior wall. Repair costs exceeded $15,000.

Slaughter was charged with aggravated stalking, burglary, and criminal damage to property in the second degree. A jury found him guilty of all three charges, and he was sentenced to twenty years with ten to serve. Slaughter’s motion for new trial was denied.

1. Slaughter first argues that the evidence was insufficient to sustain his convictions for (a) aggravated stalking, (b) burglary, and (c) criminal damage to property in the second degree. We disagree.

(a) OCGA § 16-5-91 (a) provides that a person commits the offense of aggravated stalking when that person, in violation of a court order including a “temporary protective order,” “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.” OCGA § 16-5-90 (a) (1) defines “contact” as “any communication includingf,] without being limited to [,] communication in person,” and “harassing and intimidating” as

a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

A defendant “need not engage in unequivocally hostile conduct or make explicit threats in order to be convicted of stalking” or aggravated stalking. Placanica v. State, 303 Ga. App. 302, 304 (693 SE2d 571) (2010). Further, “[e]ven a single violation of a protective order may violate OCGA § 16-5-91 (a) if that violation is part of a pattern of harassing and intimidating behavior.” Brooks v. State, 313 Ga. App. 789, 792 (1) (723 SE2d 29) (2012), citing Louisyr v. State, 307 Ga. App. 724, 729 (1) (706 SE2d 114) (2011). In considering whether evidence shows such a pattern, “the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts[ ] and any attempts by the defendant to contact, communicate with, or control the victim indirectly.” Louisyr, 307 Ga. App. at 729 (1) (footnotes omitted).

Construed in favor of the jury’s verdict, the evidence here showed that Slaughter had previously harassed the victim at work and in her car; that he destroyed property at her residence; that he returned to that residence after being served with the court order barring him from doing so; that he appeared at the door of that residence when the victim was standing less than 100 feet outside it; and that the victim was put in reasonable fear for her safety as a result of Slaughter’s behavior. As such, the evidence was sufficient to sustain Slaughter’s conviction for aggravated stalking. See Louisyr, 307 Ga. App. at 729 (1) (because OCGA § 16-5-91 does not require “multiple violations of a protective order,” “a pattern of harassing and intimidating behavior” culminating in a single violation of a protective order was sufficient to sustain a conviction for aggravated stalking); Jackson, supra.

(b) OCGA § 16-7-1 (b) defines burglary as entering or remaining “within [the] . . . dwelling house of another” “without authority and with the intent to commit a felony” therein. Once a victim has “withdrawn the defendant’s authority to enter [the victim’s] house,” the fact that a defendant may have previously lived there and had left personal property there “does not, in itself, give the defendant subsequent authority to enter.” Pittman v. State, 230 Ga. App. 799, 802 (498 SE2d 309) (1998). Because the temporary protective order specifically deprived Slaughter of any authority to enter the victim’s home, and because the evidence thus supported a conclusion that Slaughter entered that home without authority and with the intent to commit the crime of aggravated stalking, see Division 1 above, the evidence was sufficient to sustain Slaughter’s conviction for burglary. See Bray v. State, 294 Ga. App. 562, 562-563 (1) (669 SE2d 509) (2008) (evidence that defendant entered ex-wife’s residence uninvited and in violation of a bond condition and threatened her and her boyfriend was sufficient to sustain a conviction for both aggravated stalking and burglary).

(c) The evidence was sufficient to sustain Slaughter’s conviction for second-degree criminal damage to property. OCGA § 16-7-23 (a) (1) (defining second-degree criminal damage to property as “[intentionally damaging] any property of another person without [her] consent” in an amount exceeding $500). Although the evidence that Slaughter was the person who damaged the victim’s property was circumstantial, “where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.” Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998) (citation omitted). Here, evidence showed that Slaughter was inside the victim’s house on July 14, after which the victim discovered damage done there; that after being served with a protective order on the afternoon of July 16, Slaughter returned to the house, after which the victim discovered additional damage thereto; and that the cost of the total damage done by Slaughter exceeded $500. See Adams v. State, 300 Ga. App. 294, 300 (2) (b) (684 SE2d 404) (2009) (affirming conviction for criminal damage to property where the evidence showed that the defendant has access to the property at issue during the time it was damaged).

2. Slaughter also contends that the trial court erred when it refused his request for a charge on violation of a temporary protective order, OCGA § 16-5-95, as a lesser included offense of aggravated stalking. Again, we disagree.

“If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised by the evidence, denial of the charge request is proper.” Revere v. State, 277 Ga. App. 393, 395 (2) (626 SE2d 585) (2006) (citation and punctuation omitted). “[W]e review a trial court’s refusal to give a requested jury charge under an abuse-of-discretion standard.” Anderson v. State, 319 Ga. App. 701, 701-702 (738 SE2d 285) (2013) (citation and punctuation omitted).

OCGA § 16-5-95 (b) provides in relevant part that “[a] person commits the offense of violating a civil family violence order or criminal family violence order when such person knowingly and in a nonviolent manner violates the terms of such order issued against that person.” (Emphasis supplied.) The record shows that although the.State’s evidence was sufficient to establish the elements of the crime of aggravated stalking, see Division 1 (a) above, Slaughter argued at trial that he was never served with the temporary protective order obtained by the victim and that he did not return to the house or appear at its door with the intent of harassing or intimidating her. By this record, then, the State was presenting evidence and argument that Slaughter had violated a protective order with the intent to harass the victim, whereas Slaughter was presenting evidence and argument that he was never served with the protective order and did not intend to harass or intimidate the victim when he entered the house and emerged from its front door only hours after being escorted off the property. Accordingly, the jury could reasonably determine either that Slaughter was served with and violated the protective order and that he possessed the intent to harass the victim, or that he did not receive the protective order and/or did not intend to harass the victim. However, no evidence was presented that could reasonably be taken to show that Slaughter violated the protective order knowingly but nonviolently. In other words, “the evidence shows either the commission of the completed offense [ ] [of aggravated stalking] as charged, or the commission of no offense.” Brooks, 313 Ga. App. at 794-795 (3). It follows that this trial court did not abuse its discretion when it refused to charge this jury on violation of a temporary protective order as a lesser included offense of aggravated stalking. Id.

Decided June 17, 2014

Eric J. Taylor, for appellant.

Robert D. James, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.


text:
    A14A0530.
    GRAF v. THE STATE.
    (760 SE2d 613)
   Branch, Judge.

On appeal from her conviction for arson and possession of cocaine and marijuana, Pamela Graf argues that the evidence was insufficient as to the arson count and that the trial court erred when it joined the arson and cocaine cases for trial, when it limited a defense expert’s testimony, and when it failed to hold a restitution hearing. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that at 4:30 a.m. on January 18, 2009, the Forsyth County Fire Department was called to a fire at a house owned by Graf. No one was home at the time of the fire, which completely destroyed the house. After Graf’s father arrived at the scene, he gave firefighters Graf’s contact information, hut she was not reached until that afternoon, when she told the county fire investigator that she was in Washington, D.C. for the inauguration of President Obama and that she believed that her house might have been burned as a result of her support for the president. An arson investigator hired by State Farm Insurance concluded that the fire was “incendiary,” or intentionally set, with gasoline used as an accelerant. A State Farm adjuster noted the presence of “indicators of possible insurance fraud” including the occurrence of the fire after 11:00 p.m., the racial slurs found sprayed on the boundary fence of the property, and the unexplained absence of Graf, her children, and the family cats at the time of the fire. Both the county investigator and the State Farm adjuster noted that Graf was unusually unconcerned with and unemotional about her loss.

In an interview with the fire chief two days later, Graf could not specify the time and day at which she left her house, but said that she and her companion, Steve Strobel, had traveled to Washington in Strobel’s van, sleeping in the van on the way and arriving at 3:00 p.m. on January 18. Strobel’s cell phone records showed, however, that the couple had remained at or around his home in Winder as late as 2:28 a.m. on the morning of the 18th; that they had departed Winder at some point after that, eventually arriving in Charlotte, North Carolina by 10:15 a.m. on the 18th; and that Strobel remained in the Charlotte area through the afternoon of the 18th, after which they returned to Winder by 5:46 p.m. on the 19th. A search warrant executed on the temporary residence Graf occupied after the fire also recovered credit card receipts from a motel in Charlotte for the night of the 18th. A clerk testified that the credit card had been presented in person, and the car listed on the registration card was the same model as that in which Graf arrived at the search of the temporary residence. A partially smoked marijuana cigarette was found inside the residence, and 3.4 grams of cocaine was found in the pocketbook Graf was carrying when she was arrested for marijuana possession.

Although Graf did not mention anything to investigators about moving items out of her house, a search of Strobel’s residence recovered clothing, jewelry, furniture and documents belonging to Graf, including her children’s medical and school records that a police officer testified were of the type usually lost in a fire. Storage units rented to Strobel were substantially filled with Graf’s remaining possessions, including household items, furniture, wardrobe boxes, and family mementos. Dishes had been wrapped in newspaper dated two or three days before the fire, and mail postmarked as late as January 16 was also found. Graf’s son testified at trial that at a restaurant dinner a few days after the fire, Graf told her children to order whatever they wanted “because the insurance would pay for” the dinner and gave each of them a large garbage bag of possessions, including childhood mementos. Graf’s son and daughter both testified at trial that items present in the now-destroyed house at Christmas 2008 were found in Strobel’s home and in the storage units. Although she had not boarded any of her five cats during a New Year’s trip to Tybee Island, Graf boarded three of them on January 17, the day before the fire; took the fourth cat later that day to Strobel’s house; and left her garage door open for the fifth.

Graf’s ex-husband testified that although Graf had received a lump sum of approximately $220,000, not including alimony, in connection with the couple’s divorce in June 2005, Graf was complaining about a lack of money six months afterward. Graf’s alimony payments stopped in June 2008, six months before the fire. Graf’s financial advisor testified that Graf withdrew about $95,000 from her annuity account between December 2007 and December 2008, reducing that account’s value (together with depreciation) from $129,000 to $ 14,000. Graf had lost custody of her children due to her drug habit, which was estimated to cost her up to $100 per day, or more than $36,000 per year. The State Farm adjuster also testified that Graf had made three previous claims, two for stolen jewelry and one for a sewage overflow in her basement; that she had received a payment of $5,000 for each jewelry claim and that State Farm had also paid to have the basement remodeled; and that items described as stolen or destroyed in each of these claims were later recovered in Strobel’s home and storage units. In the aftermath of the fire, Graf received $7,500 as an advance on the loss of her house’s contents and $3,535.50 as payment for living expenses. State Farm also paid the house’s outstanding mortgage balance of $201,357.01 to the mortgage holder.

Graf was charged with possession of cocaine, possession of one ounce or less of marijuana, and arson. Before trial, the State moved to have the drug cases and the arson case consolidated for trial. After a hearing, the trial court granted the motion. After a jury found Graf guilty on all three counts, she was convicted and sentenced to thirty years with twelve to serve. Her motion for new trial was denied.

1. Although Graf attacks the evidence against her as circumstantial, arson “can seldom be established by positive testimony,” and “the force to be given” to circumstances corroborating a defendant’s guilt is a question for the jury rather than this Court. Wade v. State, 195 Ga. 870, 877 (3) (25 SE2d 712) (1943) (citation omitted). The evidence outlined above, though circumstantial, authorized the jury to conclude that Graf knowingly damaged her house, which was both mortgaged and insured, by means of fire. As such, the evidence was sufficient to sustain Graf’s conviction for arson in the first degree. See OCGA § 16-7-60 (a) (1), (2), (3) (defining first-degree arson as, “by means of fire or explosive,” knowingly damaging a “dwelling house” in which any other person has a security interest or which is insured “and such loss or damage is accomplished without the consent of both the insurer and the insured”); Wade, 195 Ga. at 877 (3); Jackson, supra.

2. Graf also argues that the trial court erred when it joined her drug charges to her arson case. We disagree.

Two or more offenses may be joined in one charge, with each offense stated in a separate count, when the offenses ... (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975) (citation and punctuation omitted; emphasis supplied). We review a trial court’s decision to join offenses as “parts of a single scheme or plan” only for an abuse of discretion. Simmons v. State, 282 Ga. 183, 185 (4) (646 SE2d 55) (2007) (citation omitted).

Here, the evidence showed that Graf possessed drugs at the time she was arrested at her temporary residence, and also authorized a conclusion that Graf was a drug addict in need of money when she burned down her house for the purpose of collecting the proceeds of her State Farm insurance policy on the house. “While motive is not an essential element in the proof of the crime of arson, the State is entitled to present evidence to establish that there was a motive.” Stephens v. State, 214 Ga. App. 183, 186 (5) (447 SE2d 26) (1994) (citation and punctuation omitted). Evidence of Graf’s drug habit was admissible to prove her motive for burning down her own insured house, and the evidence and law of drug possession “was not so complex or confusing as to require ... severance.” Wilcox v. State, 271 Ga. 544, 546 (2) (522 SE2d 457) (1999) (citations omitted). It follows that the trial court did not abuse its discretion when it joined the drug possession charges to the arson charge for purposes of trial. Id. (trial court did not err in joining drug possession charges to murder charge when the two were part of a single plan).

3. Graf also argues that the trial court erred when it excluded hearsay testimony from her expert as to an out-of-court conversation he had with the engineer who conducted the electrical portion of the investigation into the fire’s cause and origin. We disagree.

The record shows that although the State objected to the defense expert’s account of a conversation he had with the engineer concerning that engineer’s report as hearsay, the trial court eventually excluded the evidence not on that ground, which it repeatedly rejected, but because Graf’s failure to prepare a written version of her expert’s report precluded her from introducing any oral portions thereof under the reciprocal discovery rule. See OCGA § 17-16-4 (b) (2) (a defendant seeking to introduce any oral portions of a report “shall reduce all relevant and material oral portions of such report to writing and shall serve opposing counsel with such portions no later than five days prior to trial”). On appeal, Graf has asserted no error as to this specific ruling, with the result that she has abandoned any argument as to it. Kramer v. Yokely, 291 Ga. App. 375, 383 (3) (662 SE2d 208) (2008) (appellant was deemed to have abandoned an assertion of error when he did not sufficiently specify what the error was).

Even if the trial court had ruled as Graf claims it did, moreover, Graf failed to proffer the relevant excluded testimony at the hearing on her motion for new trial.

Where the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this court.

Holder v. State, 242 Ga. App. 479, 482 (5) (529 SE2d 907) (2000) (citations omitted). For these reasons, this assertion of error fails.

4. Finally, Graf argues that because no separate restitution hearing was held, and because no evidence was presented as to restitution at the sentencing hearing, the trial court’s order granting State Farm restitution was erroneous. We disagree.

As a preliminary matter, nothing in OCGA § 17-14-10 mandates a separate hearing on restitution. Subsection (a) of the statute provides that a trial court ordering restitution “shall consider” factors including the offender’s “financial resources” (including earnings and obligations), as well as “the amount of damages” suffered by the victim, the “goal[s]” of restitution and rehabilitation, and “the period of time during which the restitution order will be in effect.” OCGA § 17-14-7 (b) provides that “[a]ny dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence,” with “[t]he burden of demonstrating the amount of the loss sustained by a victim as a result of the offense” resting on “the state.” Finally, this Court has held that a trial court is not required “to make written findings when ordering an offender to make restitution.” McCart v. State, 289 Ga. App. 830, 832 (1) (658 SE2d 465) (2008).

Although Graf cites Watts v. State, 321 Ga. App. 289 (739 SE2d 129) (2013), for the proposition that a trial court errs when it fails to hold a separate restitution hearing, Graf does not assert or show that she asked for such a hearing, and has thus “waived any error in the decision of the trial court to decide the question of restitution as a part of the sentencing hearing, rather than in a separate and distinct hearing.” Wilson v. State, 317 Ga. App. 171, 180 (2) (b) (730 SE2d 500) (2012) (citations and punctuation omitted).

This record shows, moreover, that at the sentencing hearing, the trial court ordered restitution “to be paid, joint[ly] and severally] with Mr. Strobel,” in the amount of $212,000. The trial court’s figure of $212,000 was based on evidence introduced at trial showing the amount of payments made by State Farm to the mortgage holder as well as to Graf herself. After noting Graf’s additional responsibility for her attorney fees, the trial court also stated at the sentencing hearing: “I’ll give her a sixty-day grace period before she has to begin to pay. And then I’m going to do a rate of pay of no less than [$250] a month. And she’ll never get it all paid, but at least there will be a minimum amount of pay there.” On this record, this case is distinguishable from Watts, in which we noted the State’s failure to point out any portion of the record as supporting the restitution award, and which held only that a trial court errs when it fails to consider the factors laid out in OCGA § 17-14-10 (a) before making a restitution award. 321 Ga. App. at 295 (3) (vacating and remanding for further proceedings as to restitution). By contrast, this record shows that the trial court considered all the factors laid out in OCGA § 17-14-10 (a) and that it based its restitution award on competent evidence proving the amount granted by a preponderance of that evidence. Wilson, 317 Ga. App. at 180-181 (2) (c) (affirming order of restitution as to homeowners’ loss of use resulting from contractor’s false statement as supported by a preponderance of the evidence).

Decided June 17, 2014.

Sharon L. Hopkins, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

       We affirmed Strobel’s arson conviction last year. See Strobel v. State, 322 Ga. App. 569 (745 SE2d 796) (2013).

       Graf had asked State Farm to “allow me to grieve at my own pace with the emotionally daunting job of going through all of” the belongings supposedly ruined in the flooding incident, including the “gut-wrenching” task of discarding the christening gowns later found unharmed.


author: MCMILLIAN, Judge.

text:
    A13A2370.
    JOHNSON et al. v. JOHNSON et al.
    (760 SE2d 618)
   MCMILLIAN, Judge.

This appeal stems from a family dispute over ownership of a parcel of land on which the family “home place” is located.

In 1993, the family patriarch, A. B. Norman Johnson (“A. B.” or “father”), his wife, Ada Nell Johnson (“Ada”) and one of their sons, appellant Michael Randy Johnson (“Michael”) were deeded one-third interests in the family home place property. A. B. also owned the land contiguous to the home place, and over the years he deeded parcels of this land to several of his children, including Michael and another son, appellee Troy James Johnson (“Troy’). In 2004, an agreement was reached whereby Troy would deed three acres of the parcel he owned to Michael, and in return A. B., Ada and Michael would execute a deed conveying the home place parcel to Troy and his children (collectively “appellees”). It is this 2004 deed that is the subject of the present dispute.

Neither Troy nor his children were present when the 2004 deed was executed, and sometime later Michael brought the deed to Troy’s house in an envelope. A. B. was at Troy’s home at that time, and Michael told A. B. and Troy that he had recorded the deed, although in fact he had not done so. Michael handed the envelope to A. B., who then placed it in the trunk of his 1998 Lincoln automobile. A. B. did not remove the deed from the envelope, and he did not show Troy the deed or hand him the envelope before placing it in the trunk of his car. However, he told Troy, both at that time and later, that he was leaving the Lincoln to Troy when he died, and that the deed would be “right there in the trunk with [the] important papers.” A. B. did in fact leave the automobile to Troy in his will, but A. B. retained ownership and possession of the Lincoln until he died. Troy testified, however, that he also had keys to the Lincoln and could access it if he wanted to, although he also testified that he had not done so and did not get the deed out of the trunk or look at it until after his father died.

In 2006, Michael executed a deed to his two sisters conveying his purported one-third interest in the home place; this deed, which referenced the 1993 deed but not the 2004 deed, was recorded on September 28, 2006. In April 2007, Ada and A. B. executed a warranty deed conveying their purported two-thirds interest in the home place property to two of their other sons, and this deed was recorded on April 24, 2007. During the next few years, the grantees under the 2006 and 2007 deeds made several other conveyances of the property to relatives.

Troy testified that he knew about the 2006 and 2007 conveyances, but he never questioned his father about these conveyances because he believed they were without effect since his deed was “in front” of these other deeds. But, as stated above, he did not retrieve his own deed from the trunk of the Lincoln until after A. B. died in December 2009, and that is when he learned for the first time that his deed had not been recorded.

In August 2010, appellees filed a complaint in equity to set aside the 2006, 2007 and subsequent conveyances of the home place property. Appellants, who are the grantees under these various deeds, answered and counterclaimed to remove the cloud on their title to the land. Appellees filed a motion for partial summary judgment, contending that the evidence demonstrated that there had been a legal delivery of the 2004 deed prior to the execution and recordation of the 2006 and 2007 deeds. Appellants responded and also moved for partial summary judgment, contending that A. B. retained control of the 2004 deed until his death in 2009, and thus the 2004 deed remained undelivered at the time the 2006 and 2007 deeds were executed and recorded. Following a hearing, the trial court granted summary judgment to appellees, finding that the deed had been constructively delivered to Troy pursuant to OCGA § 44-5-42. Appellants filed the present appeal, contending that the trial court’s factual findings were not supported by the record, that OCGA § 44-5-42 applies to delivery of a deed to a third party escrow and has no application here, and that the trial court erred by finding as a matter of law that the deed had been delivered to Troy. Without belaboring each of these points, we agree that the trial court erred by finding that the 2004 deed had been delivered and accordingly reverse the grant of summary judgment to appellees.

The law in this state concerning the making and delivery of deeds is well settled. “[A] deed to lands shall be ... in writing, signed by the maker, and attested by at least two witnesses. It shall be delivered to the purchaser or his or her representative and be made on a good or valuable consideration.” OCGA § 44-5-30.

Execution of a deed without delivery is insufficient to pass title [, and delivery that passes title must be made during the lifetime of the grantor]. Robinson v. Williams, 280 Ga. 877, 879 (635 SE2d 120) (2006). “It is indispensable to the delivery of a deed that it pass beyond the control or dominion of the grantor; and where a grantor retains a deed which he executes in his possession and control until his death without doing anything to indicate an intention to deliver it, it is void for want of a delivery.” Id. (quoting Childs v. Mitchell, 204 Ga. 542, 544 (50 SE2d 216) (1948)).

Smith v. Lockridge, 288 Ga. 180, 183-184 (3) (702 SE2d 858) (2010).

Although manual delivery of the deed is not always essential to effect a legal delivery of the deed, see Childs, 204 Ga. at 544, even where the grantor stands in a relationship of trust with the grantee, the grantor’s intent to deprive himself of power and control over the deed must be shown. See Stinson v. Woodland Bank, 154 Ga. 254, 257 (114 SE 181) (1922).

The true test of delivery is whether or not the grantor intended to reserve to himself the locus penitentiae, which means an opportunity for changing one’s mind, an opportunity to undo what one has done, or a right to withdraw from an incomplete transaction. Morris v. Johnson, 219 Ga. 81, 89 (132 SE2d 45) (1963).

Decided June 18, 2014.

R. Scott Kiker, Russell B. Lariscy, Jr., for appellants.

Laura J. Ray, for appellees.

(Punctuation omitted.) Lockridge, 288 Ga. at 184.

Here, the deed was placed in the trunk of a car belonging to A. B., the original owner and one of the original grantors, and that car, according to Troy’s deposition testimony, remained under A. B.’s possession and control until shortly before his death. Although Troy also testified that at some point the deed was “gonna be” in his possession and that he could have retrieved the deed from the trunk if he had wanted it, he also testified that A. B. retained possession and control of the deed and could also have opened the trunk and gained access to it at any time, even tearing it up if he had been so inclined. And although A. B. did not destroy the deed, he did subsequently convey the property to two other sons, indicating that he had changed his mind about the conveyance to Troy. Further, Troy testified that although A. B.’s eyesight failed, A. B. knew what he was doing and remained in control of his business dealings.

To make a deed effective at the time of its execution, there must be satisfactory proof that it was the intention of the grantor that the instrument should operate to immediately convey to the grantee title to the premises therein described [and the grantor’s] purpose to deprive himself of power and control over the instrument for the benefit of the grantee must be shown.

(Citations omitted.) Stinson, 154 Ga. at 257-258. Delivery of the 2004 deed to Troy was not effectuated at the time it was placed in the trunk of A. B.’s car or thereafter during the life of A. B., and summary judgment should have been granted to appellants on this issue. Robinson v. Williams, 280 Ga. at 878-879; Keesee v. Collum, 208 Ga. 382, 385 (2) (67 SE2d 120) (1951); Hall v. Metropolitan Life Ins. Co., 192 Ga. 805, 807 (16 SE2d 576) (1941).

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

       We originally transferred this case to the Supreme Court on the basis that it concerned either title to land or was in the nature of an equity case, but that court determined that it did not have jurisdiction and transferred the case back to us.

       Apparently A. B. did not deed any land to his daughters because he believed their husbands should provide for them.

       The 2004 deed granted A. B. and Ada a life estate in the home place, and they continued to live there until they died.

       Troy testified that the Lincoln was parked on his property at the time his father died, but it had only been there for about a week.

       A. B. was granted a life estate in the home place in a subsequent deed executed by these two sons in September 2007.


author: Boggs, Judge.

text:
    A14A0142.
    SANDERS v. THE STATE.
    (760 SE2d 636)
    Decided June 18, 2014.

      Ashleigh B. Merchant, for appellant.

      Carmen D. Smith, Solicitor-General, R. Leon Benham, Mandi L. Werner, Assistant Solicitors-General, for appellee.
   Boggs, Judge.

Following a bench trial, Meredith Sanders appeals from her convictions for driving under the influence of alcohol with an unlawful blood alcohol level (per se) in violation of OCGA § 40-6-391 (a) (5) and improper right turn in violation of OCGA § 40-6-120. In her sole enumeration of error on appeal, she contends that the trial court violated her “constitutional rights to due process and compulsory-process” by failing to continue her case until she was able to obtain source code information for the Intoxilyzer 5000 from a Kentucky witness. We disagree and affirm.

The record shows that the trial court issued a certificate of materiality to CMI, Inc., a Kentucky corporation that manufactured the Intoxilyzer 5000, and ordered Sanders to present the certificate to a Kentucky court to determine if a summons would be issued requiring a CMI, Inc. representative to appear and produce evidence. It appears from the record that the Kentucky trial court rejected the certificate of materiality, and the Georgia trial court denied Sanders’ request for a stay or continuance of the trial based upon the absence of a material witness.

The alleged violations of Sanders’ constitutional right to due process and confrontation have already been considered by this court in recent decisions involving nearly identical facts. See Smith v. State, 325 Ga. App. 405, 410 (4) (750 SE2d 758) (2013) and Phillips v. State, 324 Ga. App. 728 (751 SE2d 526) (2013). For the reasons articulated in Smith and Phillips, we find no merit in Sanders’ appeal and therefore affirm.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.