text:
    A11A0327.
    HALE v. THE STATE.
    (714 SE2d 19)
   Dillard, Judge.

Walter Douglas Hale was convicted by a jury on one count of passing in a no-passing zone and one count of driving under the influence less-safe. Hale appeals his convictions, arguing that the trial court erred by (1) denying his motion to suppress the results of an alco-sensor test conducted prior to receiving his Miranda warnings and (2) informing the jury as to the existence of excluded evidence during preliminary instructions. For the reasons noted infra, we reject these arguments and affirm Hale’s convictions.

Viewed in the light most favorable to the jury’s verdict, the record shows that Hale was traveling on his motorcycle around 1:00 a.m. when he decided to pass another vehicle by crossing over a double-yellow line. A City of McDonough police officer observed this illegal maneuver and subsequently stopped Hale in the parking lot of his ultimate destination, a restaurant/bar frequented by other bikers. The officer immediately smelled the odor of an alcoholic beverage on Hale, and after being questioned, Hale admitted to having consumed one or two alcoholic beverages approximately two hours earlier.

The officer then asked Hale to perform three field sobriety tests (i.e., the horizontal-gaze nystagmus, the one-leg stand, and the walk-and-turn), and Hale exhibited clues of impairment during each of them. Thereafter, the officer inquired as to whether someone could retrieve Hale’s motorcycle for him, and then answered in the affirmative after Hale asked if he would be going to jail that evening. Hale then demanded a breath or blood test, and the officer administered a portable alco-sensor breath test, which returned a positive result for the consumption of alcohol. Additionally, the officer concluded that Hale’s manifestations were consistent with alcohol consumption and that he appeared to be a “less-safe driver.”

Given the foregoing, Hale was placed under arrest for violating a no-passing zone and driving under the influence less-safe. And upon his arrival at the police station, Hale was administered an Intoxilyzer 5000 breath test pursuant to the Georgia Implied Consent Statute.

Prior to trial, Hale sought to exclude the results of the portable alco-sensor test on the basis that he was in custody when it was conducted and should have been read his Miranda rights prior to its administration. But the trial court denied the motion to suppress, finding that Hale was not in custody during the administration of the test. Hale also sought to exclude the results of the Intoxilyzer 5000 breath test, arguing that he was denied the opportunity to seek an independent breath or blood test as allowed by law. The trial court agreed that Hale had been denied this right and, accordingly, excluded the results of the later-conducted breath test at trial. However, during preliminary jury instructions (while explaining the differences between DUI less-safe and DUI per se), the trial court mentioned — over the State and Hale’s objections — that this later-conducted breath test had been given but that its results had been suppressed. Thereafter, the jury convicted Hale on the offenses charged. This appeal follows.

1. Hale first contends that the trial court erred in denying his motion to suppress the results of the portable alco-sensor test. We disagree.

At the outset, we note that when reviewing a trial court’s decision on a motion to suppress evidence, we are guided by the following principles: (1) the trial judge sits as the trier of fact on a motion to suppress, and his findings should not be disturbed if there is any evidence to support them; (2) the trial court’s decision as to questions of fact and credibility “must be accepted unless clearly erroneous”; and (3) we must “construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” Nevertheless, when “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.”

Here, the record shows that, following the administration of the three field sobriety tests, the officer inquired as to whether anyone was available to retrieve Hale’s motorcycle. In response, Hale asked if he was going to jail. When the officer replied in the affirmative, Hale immediately said, “Give me a blood test. Give me a breath test.” The officer then explained that while he could administer the portable roadside alco-sensor test, it was not considered a state-administered test. Nevertheless, as explained supra, the alco-sensor test was administered and returned a positive result.

Hale then sought to exclude the positive alco-sensor test result on the basis that he was in custody when the test was administered and had not yet been read his Miranda rights. The trial court, however, denied Hale’s motion to suppress, concluding that Hale was not in custody at the time the test was given. And while we disagree with the trial court’s reasoning for denying Hale’s motion to suppress, we nevertheless conclude that the court did not err in admitting the results of the test.

Under Georgia law, “[a] police officer may briefly detain a motorist and administer field sobriety tests that are not of a ‘testimonial or communicative nature’ without advising the motorist of his or her rights against self-incrimination.” Once a person has been placed under arrest, however, an officer may not administer an alco-sensor or other field sobriety tests without first giving the person the requisite Miranda warnings, because the results of tests so obtained are inadmissible under OCGA § 24-9-20 (a).

To determine whether or not a person who has not been formally arrested is nevertheless in custody for Miranda purposes, a “reasonable person” test is applied. This analysis focuses on whether, under the circumstances, a reasonable person would conclude that his or her freedom of action was only temporarily curtailed and that a final determination of his or her status was merely delayed. An officer’s subjective intent to arrest, however, is relevant in this analysis to the extent such intent has been conveyed to the detainee. And here, because Hale was informed of the officer’s intent to place him under arrest, a reasonable person in Hale’s position would believe that his or her freedom of action had been more than temporarily curtailed, which thereby placed him in custody for purposes of Miranda.

But even though Hale was in custody for purposes of Miranda, the trial court did not err in admitting the results of the portable alco-sensor test because the portable test was administered in response to a demand from Hale, not the officer, thus making this situation clearly distinguishable from other custodial settings triggering the protections of Miranda and more akin to a spontaneous outburst from an unwarned suspect or a test conducted pursuant to the Georgia Implied Consent Statute. Accordingly, under these circumstances, the trial court did not err in admitting the results of Hale’s portable alco-sensor test.

2. Hale next contends that the trial court erred in mentioning the excluded results of the Intoxilyzer 5000 breath test administered pursuant to the Georgia Implied Consent Statute when instructing the jury on the differences between Georgia’s two types of DUI. We agree that the trial court erred, but conclude that this error was harmless and does not require reversal.

The record shows that after Hale was formally arrested, the officer read Hale his rights under the Georgia Implied Consent Statute, and Hale ultimately consented to the use of the Intoxilyzer 5000 breath test, which was administered upon his arrival at the police station. But both before and after this test was administered, Hale requested an independent blood test, which the State never allowed Hale to obtain. And based on this violation of Hale’s right to seek an independent test, the trial court ordered that the results of the Intoxilyzer 5000 breath test be excluded.

Nevertheless, prior to the beginning of trial, Hale’s trial counsel expressed a desire to educate the jury regarding Georgia’s two forms of DUI and the differences between DUI per se and DUI less-safe, which was the type of DUI at issue in the trial. The trial court responded that it would give a preliminary instruction regarding this distinction but that, in doing so, it would mention the excluded breath test. In response, the State filed a motion in limine to prevent the court from mentioning the exclusion of the Intoxilyzer 5000 results, and Hale also sought to prohibit the court from mentioning the exclusion of the test during its preliminary instructions. Despite these objections, and after explaining the legal requirements of DUI less-safe and DUI per se, the court further clarified the difference between the two in the following manner:

. . . This is a less-safe case. You may be wondering about a test. Georgia law says that if an officer has reason to believe that a driver is above the legal limit, the officer can request a test. The law also says that if the person takes the test then they have the right to their own test. In this particular case in a prior hearing, I ruled that Mr. Hale took the state test but was not given the opportunity to have his own test. So I ruled that the state’s test would not be admissible. So you won’t hear any evidence in this case about a test because it is not relevant. This is a less-safe case. It doesn’t matter whether the state’s test would have been zero or above the legal limit because, in this case, the state must prove that Mr. Hale consumed alcohol and, as a result of consuming that alcohol, he was a less-safe driver.

Hale argues that this preliminary instruction was effectively a comment on his guilt or innocence by the trial judge, which deprived him of a fair trial. We disagree, but conclude that this preliminary instruction was both unnecessary and improper. An erroneous jury instruction, however, is not “judged in isolation, but rather [is] considered in the context of the entire jury charge and the trial record as a whole to determine whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution.” Further, “an erroneous jury charge is not reversible unless it causes harm.”

Decided June 30, 2011.

Kristen C. Quinton, for appellant.

Applying the forgoing principles to the case sub judice, we conclude that the trial court’s error was harmless. While we fully recognize that the trial court sought to educate the jurors through its preliminary instructions, “its evidentiary preview was fraught with potential prejudice and [was] improper.” Nevertheless, when the trial court’s comment is viewed in the context of the trial as a whole, the error was harmless because there is no reasonable probability that this preliminary instruction impacted the jury’s verdict, given that the jury was presented with overwhelming evidence that Hale was a less-safe driver, including (1) a video of the traffic stop, which showed Hale’s less-than-stellar performance on the field sobriety tests, his difficulty following instructions, and his occasionally belligerent demeanor; (2) Hale’s admission to consuming alcohol; (3) the officer’s testimony regarding Hale’s traffic violation, his observations during the stop, and the positive results of the alco-sensor test; and (4) similar-transaction evidence.

Accordingly, for all the foregoing reasons, we affirm Hale’s convictions.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

Charles A. Spahos, Solicitor-General, Joseph L. Stone, Assistant Solicitor-General, for appellee.

        See OCGA § 40-6-46 (b).

        See OCGA § 40-6-391 (a) (1).

        See, e.g., Goddard v. State, 242 Ga. App. 154, 154 (529 SE2d 184) (2000) (“ÍTJhe evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence!.]” (citation and punctuation omitted)).

        See OCGA § 40-6-392.

       OCGA § 40-6-392 (a) (3) (“The person tested may have a physician or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer.”).

       We note that this test in fact returned a result that showed Hale was over the legal limit of 0.08.

        See OCGA § 40-6-391 (a) (1), (5).

        E.g., Polizzotto v. State, 248 Ga. App. 814, 816 (1) (547 SE2d 390) (2001) (citation and punctuation omitted).

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        See OCGA § 40-6-392.

        State v. Peters, 222 Ga. App. 484, 484 (474 SE2d 623) (1996); see also Trudewind v. State, 224 Ga. App. 223, 223-24 (480 SE2d 211) (1997) (holding that driver was only at point of being briefly detained when field sobriety tests were conducted, making Miranda warnings unnecessary).

        See State u. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997) (further noting that “an arrestee may not be compelled to do an act which is incriminating, but he may be compelled to submit to acts by others”); see also OCGA § 24-9-20 (a) (“No person who is charged in any criminal proceeding with the commission of any indictable offense or any offense punishable on summary conviction shall be compellable to give evidence for or against himself.”); State v. Norris, 281 Ga. App. 193, 197 (635 SE2d 810) (2006) (explaining that Georgia case law holds that “alco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where . . . administration of the tests has not been preceded by a Miranda warning” (footnote omitted)). See generally Montgomery v. State, 174 Ga. App. 95, 95 (1) (329 SE2d 166) (1985) (explaining that OCGA § 24-9-20 (a) is “more protective of the individual’s right than the Fifth Amendment. . . [because] the Georgia statute has been construed to limit the State from forcing an individual to present evidence, testimonial or real” (citations omitted)).

        See, e.g., Norris, 281 Ga. App. at 195-96; Turner v. State, 233 Ga. App. 413, 415 (1) (a) (504 SE2d 229) (1998); see also J. D. B. v. North Carolina, 564 U. S_(II) (A) (131 SC 2394, 180 LE2d 310) (2011) (noting that the purpose of the Miranda warnings is to protect individuals “against the coercive nature of custodial interrogation,” and that these warnings are required “only where there has been such a restriction on a person’s freedom as to render him in custody” (citation and punctuation omitted)).

        Compare Jellie v. State, 258 Ga. App. 261, 262-63 (1) (573 SE2d 490) (2002) (holding that because the facts did not show that defendant believed he was under arrest for DUI during his performance of field sobriety tests, Miranda warnings were unnecessary), with Norris, 281 Ga. App. at 196 (holding that defendant’s detention ripened into a custodial arrest when he was told to turn around and place his hands behind his back, even though he was not expressly informed that he was under arrest).

        Cf. Conner v. State, 205 Ga. App. 564, 566 (3) (422 SE2d 872) (1992) (discussing officer’s intent to arrest in context of Fourth Amendment analysis and deeming it significant to the extent the officer’s intent is conveyed to a detainee).

        See Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998) (“[H]avingbeen informed that she was going to jail, a reasonable person would have believed that the detention was not temporary. Therefore, the failure to give the Miranda warnings renders evidence regarding the field sobriety tests inadmissible.”); State v. Kirbabas, 232 Ga. App. 474, 476 (502 SE2d 314) (1998) (“[A]bsent the officer making any statement that would cause a reasonable person to believe that she was under arrest and not temporarily detained during an investigation, the officer’s ‘belief that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe she was under arrest.”).

        See Phillips v. State, 285 Ga. 213, 215 (2) (675 SE2d 1) (2009) (“[A] spontaneous and unsolicited statement not made in response to any form of custodial interrogation is not subject to the strictures of Miranda and is admissible without the warnings having been given.” (citation omitted)); Delay v. State, 258 Ga. 229, 231 (3) (c) (367 SE2d 806) (1988) (holding that defendant’s unwarned, custodial statement was admissible because it was not initiated by officers and was instead a response to the officer’s answer to the defendant’s own question); see also Everhart v. State, 209 Ga. App. 82, 83 (2) (432 SE2d 670) (1993); McClendon v. State, 201 Ga. App. 262, 264 (1) (b) (410 SE2d 760) (1991); Lewis v. State, 179 Ga. App. 118, 118-19 (1) (345 SE2d 663) (1986); Houser v. State, 173 Ga. App. 378, 380-81 (2) (326 SE2d 513) (1985).

        See State v. Carraway, 251 Ga. App. 469, 470 (554 SE2d 602) (2001) (noting that breath tests administered under the Georgia Implied Consent Statute do not infringe upon a suspect’s right against self-incrimination, making Miranda inapplicable); State v. Lord, 236 Ga. App. 868, 868 (513 SE2d 25) (1999) (same); see also Kehinde v. State, 236 Ga. App. 400, 400 (512 SE2d 311) (1999) (urine test); State v. Moses, 237 Ga. App. 764, 764 (516 SE2d 807) (1999) (blood test). See generally State v. Coe, 243 Ga. App. 232, 233-34 (2) (533 SE2d 104) (2000) (explaining that the privilege against self-incrimination is not implicated “by the choice granted by the Georgia Implied Consent Statute whether to submit to a chemical test of bodily substances such as blood, breath, or urine”).

        See OCGA § 40-6-391 (a) (1) (“A person shall not drive orbe in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive[.]”).

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

        See OCGA § 17-8-57 (“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.”); see also Caldwell v. State, 273 Ga. App. 135, 139 (2) (614 SE2d 246) (2005) (“[W]e find that none of the challenged statements was an improper comment on the evidence under OCGA § 17-8-57. None of the statements expressed an opinion about whether the evidence had proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.”). Additionally, the court instructed the jury that the court’s role was not to comment upon the evidence and that the State was required to prove the defendant’s guilt beyond a reasonable doubt.

        See Bostic v. State, 184 Ga. App. 509, 510 (3) (361 SE2d 872) (1987) (analyzing allegedly erroneous preliminary explanation to jury in the context of a jury charge).

        Ruiz v. State, 286 Ga. 146, 150 (3) (686 SE2d 253) (2009) (citation omitted); see also Bostic, 184 Ga. App. at 510 (3) (“It is a fundamental rule of law that jury instructions must be viewed as a whole.” (citation omitted)).

        Ruiz, 286 Ga. at 150 (3) (citation omitted); see also Bostic, 184 Ga. App. at 510 (3).

        Wax v. State, 293 Ga. App. 365, 365-66 (1) (667 SE2d 192) (2008) (holding that trial court committed harmless error by informing the jury at the beginning of trial that defendant had pleaded guilty to a prior DUI offense). Cf. Rayburn v. State, 234 Ga. App. 482, 485 (2) (506 SE2d 876) (1998) (holding that testimony regarding an inadmissible field sobriety test was harmless error because it was “merely cumulative” of other evidence of intoxication).

        Compare Edmonds v. State, 196 Ga. App. 190, 193-94 (1) (395 SE2d 566) (1990) (holding that trial court committed reversible error when it made preliminary remarks to the jury regarding the inadmissibility of a defendant’s prior criminal record and the number of guilty pleas the court would hear later in the day, leaving the jury with an impression that most criminal defendants are guilty). Cf. Rayburn, 234 Ga. App. at 485 (2) (see note 25 supra).


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A0328.
    DOMINGUEZ v. THE STATE.
    (714 SE2d 25)
   Blackwell, Judge.

Two deputies with the Hall County Sheriffs Office stopped a car driven by Leonel A. Dominguez after they observed Dominguez fail to properly signal a right turn. These deputies were following Dominguez because someone had told them that a Hispanic man who drove the same kind of car was a drug dealer. In the course of the traffic stop, the deputies asked Dominguez for permission to search his car. When he refused, the deputies called for a canine unit to come to the scene and detained Dominguez until the canine unit arrived. When the canine unit arrived about ten minutes later, a drug dog sniffed the exterior of the car and indicated the presence of drugs. The deputies then searched the car and found approximately three grams of methamphetamine in the steering column.

Before trial, Dominguez moved to suppress the evidence seized during the search of his car, contending that it resulted from an unlawful detention. Following a hearing on that motion, the trial court denied it. Dominguez then was tried without a jury and was convicted of possession of methamphetamine with intent to distribute in violation of OCGA § 16-13-30 (b) and failure to use his turn signal in violation of OCGA § 40-6-123 (a). Dominguez appeals, asserting that the trial court erred when it denied his motion to suppress. We agree and reverse the judgment below.

With respect to the motion to suppress, the facts are undisputed. The evidence shows that the deputies received a tip about a Hispanic drug dealer on either the day they stopped Dominguez or the day before. According to one deputy, the tipster told them that a Hispanic man, who was a large man and went by the name “Giant,” drove a green Crown Victoria and dealt methamphetamine. The tipster gave the deputies no other information, such as the specific areas in which Giant sold drugs or when they might expect to see Giant in those areas. As one deputy acknowledged, the information was “very vague . . . even for us.” Later, at the hearing on the motion to suppress, the deputies did not identify the tipster or explain how they came into contact with him, but they admitted that the tipster was neither an informant who worked regularly with the Sheriffs Office nor someone who was known to the deputies. One deputy explained, “I can’t even tell you why I began talking to [the tipster].”

When the deputies later saw Dominguez driving a green Crown Victoria, they began to follow him. They followed him for several miles and, during that time, asked their dispatcher to check the registration of the car. When Dominguez made a right turn, the officers noticed that his turn signal was not operating properly, and they initiated a traffic stop. According to one deputy, Dominguez appeared nervous when the deputies first approached him, and his hands were shaking when he gave his driver’s license to them.

Dominguez told the deputies that he was unaware of any problem with his right turn signal, and they offered to show him that it was not working properly. Dominguez declined this offer, explaining that he believed what the deputies had told him. The deputies then instructed Dominguez to exit his car and walk to the rear of the car. Dominguez complied, and while he was standing at the rear of his car, one deputy commented that he seemed “kind of nervous” and asked whether Dominguez had any drugs or weapons on his person. Dominguez responded that he did not have any drugs or weapons, and the deputies then asked him to empty his pockets. Dominguez did so, and he placed the items he removed from his pockets on the trunk of his car. The deputies then asked for permission to search his person, and Dominguez consented. The deputies found nothing of interest when they searched his person, one told Dominguez that he was “good to go,” and Dominguez began returning his personal items to his pockets.

As Dominguez was retrieving his personal items, the deputies asked three times for permission to search his car, and each time Dominguez refused, telling the deputies that he did not have the time for a search. When Dominguez refused consent for the third time, the deputies informed him that they were calling a canine unit to the scene, so that a drug dog could sniff the exterior of his car.

It is undisputed that the drug dog and its handler arrived no later than ten minutes after the deputies requested the drug dog, which means that the drug dog arrived approximately fifteen minutes after the traffic stop began. The drug dog sniffed the exterior of the car and alerted on the driver’s side, near the front of the car, indicating the presence of drugs. The deputies then searched the car and found methamphetamine hidden in the steering column. They subsequently also discovered digital scales in the trunk.

Dominguez moved to suppress the evidence found in the search of his car, and after a hearing, the trial court denied that motion, finding that the information that the tipster had given to the deputies, the fact that Dominguez had committed a traffic violation, and his nervousness at the beginning of the traffic stop, taken together, gave the deputies sufficient reason to suspect that Dominguez was involved in illegal, drug-related activity. The trial court concluded, therefore, that detaining Dominguez until the drug dog arrived was lawful, and the court denied the motion to suppress. Following his conviction, Dominguez appeals.

Dominguez does not dispute that the deputies lawfully stopped him when he failed to properly signal a right turn. Instead, he says that the deputies unlawfully prolonged the traffic stop for the purpose of having a drug dog come to the scene and sniff his car. Given the record in this case, we are constrained to agree.

The State bears the burden of proving that the search of the car was lawful, Thomas v. State, 301 Ga. App. 198, 198 (687 SE2d 203) (2009), and to carry this burden, the State must show that it was lawful to detain Dominguez until the time the drug dog indicated the presence of drugs. When an officer stops a driver to investigate a traffic violation, the officer cannot continue to detain the driver after the investigation of the traffic violation is complete unless the officer has a particularized reason to suspect that the person is engaged in some other criminal activity. Rosas v. State, 276 Ga. App. 513, 516 (1) (b) (624 SE2d 142) (2005); State v. Cunningham, 246 Ga. App. 663, 665 (541 SE2d 453) (2000). Here, the State has offered no evidence that the deputies still were investigating the failure to properly signal a right turn — an investigation that they indisputably were entitled to conduct — when they called for a canine unit to come to the scene and detained Dominguez until it arrived. Perhaps the deputies were still conducting a traffic investigation at that time, but the record does not show it. There is no evidence, for instance, that the deputies still were awaiting information about Dominguez, the validity of his driver’s license, or the registration and insurance of his car when they called for the canine unit. Compare Bowens v. State, 276 Ga. App. 520, 521 (623 SE2d 677) (2005) (officer still awaiting results of license and registration check when drug dog sniffed car). There is no evidence that the deputies still were inspecting the turn signal of the car or asking questions of Dominguez about it. And there is no evidence that they were writing a citation or even thinking about whether to write a citation or issue a warning during this time. Compare Byers v. State, 272 Ga. App. 664, 665 (613 SE2d 193) (2005) (officer still writing citation when drug dog sniffed car). We must conclude, therefore, that the investigation of the failure to properly signal a right turn cannot justify the continued detention of Dominguez after the deputies called for the drug dog. See Faulkner v. State, 256 Ga. App. 129, 130 (567 SE2d 754) (2002) (as a matter of law, a traffic stop is complete “once the tasks related to the investigation of the traffic violation and processing of the traffic citation have been accomplished”); Cunningham, 246 Ga. App. at 665 (original traffic stop concluded once the driver was given the citations related to the offense for which she had been stopped).

We turn, then, to consider whether the State has carried its burden to prove that the deputies had a reasonable suspicion that Dominguez was involved in some criminal activity besides the traffic violation when they called for the drug dog and continued to detain Dominguez until it arrived and sniffed his car. To show that an officer had reasonable grounds upon which to temporarily detain an individual for the purpose of conducting an investigation, the State is required to prove that the officer then was aware of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the detention.” Lindsey v. State, 287 Ga. App. 412, 414 (651 SE2d 531) (2007) (citation and punctuation omitted). See also Pollack v. State, 294 Ga. App. 400, 403 (3) (670 SE2d 165) (2008). We conclude that the State has not carried its burden in this case.

The State contends, and the trial court found, that the deputies had reasonable cause to suspect that Dominguez was engaged in drug activity, given what the tipster had told the deputies and the fact that Dominguez appeared to be nervous at the beginning of the traffic stop. Our precedents, however, do not support this contention. As to the tip, the deputies did not identify the tipster who provided the information or the circumstances in which the information was provided. The deputies knew nothing of the credibility of the tipster, who had not dealt with the deputies before and did not regularly provide information to the Sheriffs Office. As a general rule, information from a tipster of unknown credibility does not provide reasonable grounds upon which to detain a person for investigative purposes. Tiller v. State, 261 Ga. App. 363, 365 (582 SE2d 536) (2003). The general rule does not always apply when the information is detailed enough that it can be corroborated, Slocum, 267 Ga. App. at 338, but in this case, the deputies were given only a generalized description of the car and the drug dealer who drove it, and the tipster provided no details that would have allowed the deputies to verify that the information was inherently reliable. The tip was not enough to justify the continued detention of Dominguez. See McSwain, 240 Ga. App. at 61-62 (anonymous tip that a light green, four-door Honda Accord, with a specific license plate number, occupied by four black males and headed northbound on 1-95 from Florida to one of the Carolinas, might have some contraband in the trunk, did not support a reasonable suspicion of criminal activity). Compare Alford v. State, 293 Ga. App. 512, 513-514 (1) (667 SE2d 680) (2008) (sufficient basis for reasonable suspicion of criminal activity where State showed that a reliable confidential informant accurately described the vehicle the suspect would be driving “in a specific subdivision near a particular street, carrying a specific quantity of cocaine. The police conducted surveillance and observed a vehicle matching a description given by the Cl with a driver who also matched the Cl’s description.”).

The State also points, of course, to the fact that Dominguez seemed nervous when the deputies first stopped him. But even when we consider that fact alongside the vague tip the deputies had received, we cannot conclude that the deputies were aware of circumstances sufficient to create a reasonable suspicion that Dominguez was involved in other criminal activity. Recognizing that most citizens can become a little nervous when they are stopped by police officers, this Court has held before that nervousness — even when combined with other circumstances that are no less incriminating than the tip the deputies in this case received — is insufficient to justify an investigative detention. See State v. Thompson, 256 Ga. App. 188, 189 (569 SE2d 254) (2002) (fact that defendant appeared extraordinarily nervous, became defensive when asked about marijuana, and there was a strong odor of laundry detergent or air freshener, which were often used to mask the smell of drugs, did not provide reasonable basis for suspecting criminal activity); Payne v. State, 244 Ga. App. 734, 735-743 (4), (5) (536 SE2d 791) (2000) (driver’s nervousness combined with fact that he was driving a rental car, was traveling from Florida, and had no luggage, did not support a reasonable suspicion of drug activity); Migliore v. State of Ga., 240 Ga. App. 783, 786 (525 SE2d 166) (1999) (evidence insufficient to show a reasonable basis for suspecting drug activity where defendants appeared nervous and gave police inconsistent stories about their out-of-state trip); State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999) (no reasonable basis for suspecting criminal activity where occupants of car appeared nervous, none could produce any proof of ownership of the vehicle, and the back seat passenger was clutching a black bag).

Decided June 30, 2011.

Kristin I. Jordan, for appellant.

Of all our precedents, we think Cunningham, supra, is the most instructive for the purposes of this case. In Cunningham, an officer was told that police had received a tip about a “specifically described” Caprice Classic automobile. The officer was told that the car would be traveling from the Atlanta area towards Rome on a specific highway, that it would be occupied by a white female and possibly a white male, and that the passengers in the car might be carrying methamphetamine. The original source of the tip was unknown to the officer. 246 Ga. App. at 663. The officer later saw a car of the same description on the highway that the tip had predicted. Id. After observing several traffic violations, the officer stopped the car, and as the officer approached the car, he observed a passenger reach into either the floorboard or glove box. Id. at 663-664. After the officer completed his investigation of the traffic offenses, he asked the driver for permission to search the car. The driver did not give consent and seemed nervous, so the officer retrieved a drug dog from his patrol car and walked it around the car. The drug dog indicated the presence of drugs, and when the officer searched the car, he discovered 42.2 grams of methamphetamine on the floorboard, where he earlier had seen the passenger reaching. Id. at 664. The trial court denied a motion to suppress the evidence found in the search of the car, and this Court reversed, holding that the nervousness of the driver during the traffic stop, the observation of the passenger reaching toward the floorboard, and the tip failed to provide the officer with reasonable grounds upon which to detain the driver and passenger after the investigation of the traffic offenses was complete. In so holding, we noted that the State had failed to establish that the tip was reliable. Id. at 666.

Considering the similarities between Cunningham and this case — and also considering that the officer in Cunningham had a tip that was more detailed than the tip in this case — we must conclude that the trial court erred when it found that the deputies had reasonable grounds upon which to continue to detain Dominguez after the deputies called for a drug dog. Accordingly, we must reverse the judgment of conviction below.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

       Different judges heard the motion to suppress and the bench trial.

       Because the facts are undisputed, we review the denial of the motion to suppress de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

       At the time the deputies initiated the traffic stop, the dispatcher reported to them that the car was properly insured and had no outstanding tickets.

       When the deputies activated the emergency lights on their patrol car, the video camera in the car began recording, and a copy of that video recording was admitted and played for the trial court at the hearing on the motion to suppress. Approximately five minutes into the stop, the video camera was turned off accidentally by one of the deputies. When they discovered their mistake, the officers turned the video camera on again. Consequently, only portions of the stop were recorded.

       Although this comment about Dominguez being nervous can be heard on the video recording of the traffic stop, the deputy who made the comment, after reviewing the video recording at the hearing on the motion to suppress, admitted that he could not recall whether Dominguez exhibited any signs of nervousness as or after he exited the car. The deputy only could recall that his hands shook when he gave his driver’s license to the deputies. The video recording itself does not reveal any shaking or other obvious signs of nervousness, so the testimony of the deputy is the only evidence of nervousness in the record.

       The deputy who said that Dominguez was “good to go” later explained at the hearing that he did not mean that the traffic stop was over and Dominguez was free to leave. Rather, the deputy explained, he was merely indicating that Dominguez did not have any drugs on his person.

       Because the video recording stops shortly after the deputies called for the canine unit, and does not resume until after the drug dog had sniffed the car, there is no way to determine precisely how much time elapsed before the drug dog arrived.

       To the contrary, the record shows that the deputies learned that the car was properly registered and insured at the time they initiated the traffic stop, so they could not have been awaiting that information when they continued to detain him. And the record shows that the deputies learned at some point during the traffic stop that Dominguez had no outstanding warrants and had a valid driver’s license, although the record is silent about when the deputies learned those things. Because the record is silent on that point, and because the State bears the burden of proving the lawfulness of the continued detention, we cannot find that the deputies were awaiting information about Dominguez or his driver’s license when they continued to detain him after calling for the canine unit. And about writing a citation, one deputy testified that he never wrote a citation for the traffic offense, so that cannot be the reason for the continued detention. Whether he was thinking about it, or thinking about giving Dominguez a warning, while they waited for the canine unit to arrive, we do not know because the record, again, is silent.

       One deputy testified that the traffic stop had not concluded when he called for the drug dog, but he was not asked for, and did not give, any reasons why he still needed to detain Dominguez in connection with the traffic offense for which the deputies originally had stopped Dominguez. In fact, when asked what he was doing between the time he called for the drug dog and the time it arrived, this deputy testified that he was “Lj]ust waiting on fthe drug dog].”

       The State also points to the fact that Dominguez had committed a traffic violation. We do not understand how the failure to signal a right turn suggests that one is engaged in dealing or transporting illegal drugs.

       We note that there is no evidence that the tipster was a “concerned citizen,” as that term is used in our precedents. If the record contained such evidence, the trial court might properly have concluded that the information provided to the deputies was presumptively reliable. See Slocum v. State, 267 Ga. App. 337, 338 (599 SE2d 299) (2004) (“Where the information is provided to police by an informant who is either an identified interested citizen or an identified victim of a crime, there is a presumption of reliability.”); Penny v. State, 248 Ga. App. 772, 775 (2) (b) (547 SE2d 367) (2001) (“a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable”).

       We note that, although deputies found a large amount of cash on the person of Dominguez (about $600), there is no evidence that they discovered this cash until after the drug dog sniffed the car and they arrested Dominguez. Because large amounts of cash can be indicative of drug transactions, see, e.g., Hight v. State, 293 Ga. App. 254, 258-259 (5) (666 SE2d 678) (2008), we might be inclined to find that the discovery of the cash, combined with the other circumstances of this case, is sufficient to support a reasonable belief that Dominguez was involved in drug activity, if only the State had proven that the deputies were aware of the cash when they called for the drug dog and continued to detain Dominguez. The State, however, failed to make such a showing.


author: Dillard, Judge.

text:
    A11A0401.
    In re ESTATE OF ISAAC WILLIS.
    (713 SE2d 464)
   Dillard, Judge.

New Falls Corporation (“New Falls”) appeals the Probate Court of Fulton County’s denial of its petition to require the executors of the estate of Isaac Willis to file an inventory and returns pursuant to OCGA §§ 53-7-33 and 53-7-69. New Falls argues that the probate court erred by denying this petition because it made an adequate showing of injury, such that the probate court should require the filing of an inventory by the estate. For the reasons set forth infra, we affirm the probate court’s denial of New Falls’s petition.

The record shows that prior to the death of Isaac Willis, New Falls filed suit in the State Court of Fulton County in March 2005 to collect on promissory notes issued to Willis by Wachovia Bank, which were later assigned to New Falls. The original principal amounts of the promissory notes, issued in 2001 and 2002, were $300,000, $150,000, and $500,000, respectively. After Willis allegedly defaulted on these notes, New Falls filed suit to recover the principal amount owed on each note, plus interest and attorney fees.

Willis died on August 7, 2007, while the litigation on the promissory notes was still pending. His sons, who were the named executors of his estate, petitioned to have their father’s will probated in solemn form. The will, dated November 29, 1999, included a provision relieving the estate’s executors from the duty “to make or file any reports, annual or other returns, or inventory, inventories or appraisals ... to any court.”

Thereafter, New Falls substituted the estate’s executors as parties in the State Court lawsuit against Willis, and at this point, the executors’ counsel indicated to New Falls that the estate did not have sufficient assets to pay the entirety of the alleged debt. New Falls then sought verification of this claim and received “[unsworn and unverified] information concerning the assets and other debts of the estate,” but claims that this information was “insufficient” to allow it to properly evaluate the estate’s settlement proposal. Accordingly, New Falls filed a petition with the probate court in January 2010, requesting that the court direct the executors to file an inventory and return.

The probate court denied New Falls’s petition in March 2010, holding that it failed to make a “proper showing that would cause the probate court to require [the executors] to file inventory and returns.” This appeal by New Falls follows.

At the outset, we note that Georgia law requires executors to file inventories of a decedent’s property and annual returns. Nevertheless, a testator may, by will, dispense with these requirements, “provided the same does not work any injury to creditors or persons other than beneficiaries under the will.” As a creditor of Isaac Willis, New Falls claims that his will’s dispensation of these requirements will work an injury, and as such, the probate court should have required the executors to file inventories and returns to assist its settlement evaluations. Specifically, New Falls claims that (1) it requires the information to properly negotiate a settlement with the estate and (2) obtaining the information through post-judgment discovery would further deplete the estate’s (allegedly) limited resources.

In making this argument, New Falls relies on OCGA §§ 53-7-33 and 53-7-69, neither of which provides for a cause of action. The function of the sentences at issue in these two statutory provisions is simply to note that the testator’s ability to dispense with filing requirements does not make the executor unaccountable when a creditor or nonbeneficiary will be injured by the executor’s exemption from filing inventories or annual returns. Further, New Falls has not even alleged that it has suffered an injury. Instead, New Falls has alleged only the potential for injury, which is not enough to compel an accounting. Thus, New Falls must obtain (or should have obtained) the information it seeks through normal discovery or other available means.

Decided June 30, 2011.

Jones & Walden, Louis P. Owens III, for appellant.

Dovin, Malkin & Ficken, Edward J. Dovin, Allison H. Ficken, for appellee.

Accordingly, for the foregoing reasons, we affirm the probate court’s denial of New Falls’s petition.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See OCGA § 53-7-30 (requiring personal representatives to “prepare an inventory of all the property of the decedent”); OCGA § 53-7-67 (a) (requiring personal representative to “make annual returns” and “file with the probate court a true and just verified accounting of the receipts and expenditures in behalf of the estate . . . with a note or memorandum of any other fact necessary to the exhibition of the true condition of the estate”).

       OCGA § 53-7-33 (allowing testator to dispense with necessity of filing an inventory); OCGA § 53-7-69 (allowing testator to dispense with necessity of filing an annual return).

        Cf. Waters u. Glynn County, 237 Ga. App. 438, 440 (3) (514 SE2d 680) (1999) (holding that OCGA § 13-6-11 “does not state a cause of action, but merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of his damages” (citation and punctuation omitted)). Compare OCGA § 53-7-55 (providing for the revocation of letters of personal representative or other sanctions “[ujpon the petition of any person having an interest in the estate or whenever it appears to the probate court that good cause may exist” for same).

        See Cannon v. Bangs, 269 Ga. 671, 672 (502 SE2d 224) (1998) (“[W]hile a testator may by will dispense with any necessity for the executor to make inventory or returns provided that there is no injury to creditors or third persons, such a will provision does not render the executor unaccountable in court in a proceeding by a party with the right to seek an accounting and settlement.”); Salter v. Salter, 209 Ga. 90, 97 (3) (70 SE2d 453) (1952) (“While it is true that the will relieved the executor from making an inventory or accounting to the [probate court], this does not mean that the executor is unaccountable in any court at the insistence of a legatee or someone interested in the estate.” (citation omitted)); Chapalas v. Papachristos, 185 Ga. 544, 547-48 (195 SE 737) (1938) (“[W]e cannot think that the testator, in relieving the executor from the duty of making returns, intended also to make him unanswerable in any court on the question of settlement; and if he is subject to the jurisdiction of any court on that question, there is no reason to say that he is not amenable to the [probate court].”).

        Cf. Fuller v. Fuller, 217 Ga. 691, 694 (1) (a) (124 SE2d 741) (1962) (holding that allegations that amounted to mere apprehension of injury were insufficient to form the basis for an injunction); Elam v. Elam, 72 Ga. 162, 162 (2) (1883) (“A fear on the part of complainants, that if defendant should sell the property and pocket the proceeds, they would be unable to realize anything upon their claims against the estate which she represents, is a naked allegation; it must be shown clearly upon what grounds such fear rests.”).

        Compare Cannon, 269 Ga. at 673 (allegations of fraud and mismanagement by executor sufficient to compel an accounting), with Marshall v. Marshall, 268 Ga. 687, 689-90 (3) (492 SE2d 188) (1997) (allegations of suspected mismanagement, without specificity, were insufficient); Fuller, 217 Ga. at 694 (1) (a) (allegations of potential harm were insufficient); Elam, 72 Ga. at 162 (1), (2) (same). See also Benefield v. Martin, 276 Ga. App. 130, 132 (622 SE2d 469) (2005); Dorough v. Pettus, 215 Ga. 649, 649 (112 SE2d 592) (1960); Dorough v. Pettus, 101 Ga. App. 797, 800-01 (115 SE2d 440) (1960); Hoffman v. Chester, 204 Ga. 296, 305-06 (49 SE2d 760) (1948).

        See OCGA §§ 9-11-26 to -37 (general discovery procedures); see also OCGA § 9-7-3 (“In all cases in the superior, state, or city courts involving matters of account, if the case shall require it, the judge may appoint an auditor to investigate the matters of account and report the result to the court upon the application of either party and after notice to the opposite party, or upon his own motion when in his judgment the facts and circumstances of any such case require it.”).

       New Falls also sought for remand of this case to the probate court for a hearing and the issuance of a citation; however, because New Falls has failed to state a cause of action, remand for a hearing and citation is unnecessary.


author: BARNES, Presiding Judge.

text:
    A11A0520.
    FLEMING et al. v. HARBOURNE et al.
    (713 SE2d 466)
   BARNES, Presiding Judge.

Harbor Construction Company, Inc. entered into a “Teaming Agreement” with I. L. Fleming, Inc. to perform federal construction projects. Fleming did not pay one of its subcontractors $203,800, and the subcontractor obtained payment under a surety bond guaranteed by Harbor and its principals, R. C. Harbourne and Emma Harbourne (collectively, “Harbor”). Harbor reimbursed the surety company and then sued I. L. Fleming, Inc. and two individual defendants, I. L. Fleming and Cheryl A. Fleming (collectively, “Fleming”) for repayment of the bond under the parties’ indemnity agreement, and for “interest, attorney[ ] fees, costs, and other damages as provided by law.” In a cryptic order drafted by Harbor, the trial court granted summary judgment to Harbor for $203,800, then provided that “the payments of [Fleming] are applied in toto to Count 1 as [Fleming] urged.” The court also awarded attorney fees of $20,405 and interest of $17,369, “plus $3.33 a day from June 2, 2009 until satisfied.” Fleming appeals, and for the reasons that follow, we reverse.

On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Ford v. Bank of America Corp., 277 Ga. App. 708 (627 SE2d 376) (2006). Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Id.

1. On page ten of its brief, Harbor now concedes that Fleming has repaid Harbor the principal sum of $203,800, a fact his attorney also “consented to” in the trial court, but only after the trial court issued its first order in November 2009 granting summary judgment to Harbor for $115,500. Until that concession, Harbor argued that, while Fleming had paid $203,800, of those payments only three checks totaling $88,300 listed R. C. Harbourne personally as a payee, and Mr. Harbourne was the party seeking relief in the complaint. Because Mr. Harbourne was the named plaintiff, he argued, any payments Fleming had made only to Harbor, Inc. or Emma Har-bourne did not apply to this debt, and Fleming still owed him $115,500. In an affidavit, however, Fleming’s attorney asserts that all of Fleming’s payments were intended to apply to the bond repayment issue.

Harbor having conceded that Fleming does not owe anything more to Harbor, Inc. or its principals on their claim for $203,800, the trial court erred in finding the defendants jointly and severally liable for this sum. While the court also found that “the payments of [Fleming] are applied in toto to Count 1,” the judgment on its face does not explain what that means or make it clear that Fleming has paid the entire principal sum; further, if Fleming had paid Harbor all the money it sought on this claim, then Harbor was not entitled to a judgment for that amount. Accordingly, the trial court erred in granting summary judgment to Harbor.

2. It follows that the trial court also erred in granting Harbor $17,369.04 in interest, “plus $3.33 per day from June 2, 2009 until satisfied.” Given Harbor’s concession that Fleming has paid the principal sum, the provision in the judgment for continuing interest is error. Further, the order includes no information about how the court arrived at these sums. It does not indicate the rate of interest applied, the amount of principal on which the interest was calculated, or the date on which interest began running. Finally, Harbor concedes that a review of the cases Fleming cited in its appellate brief regarding “interest on interest” was sufficient to cause it “to abandon any such claim, rather than burden this Honorable Court with large arguments as to trifling sums.” Harbor then states it does not renounce its claim “to interest accrued prior to full payment of the $203,800, in issue, as calculated by” the trial court’s order, and which it contends is available at the legal rate under OCGA § 9-12-10.

OCGA § 9-12-10 forbids post-judgment interest on anything except the principal or original debt. Dept. of Transp. v. Consolidated Equities Corp., 181 Ga. App. 672, 677 (353 SE2d 603) (1987). The statute does not address pre-judgment interest, and Harbor has not explained the basis for a pre-judgment interest award. As this court cannot determine how the trial court calculated the interest purportedly due, nor the worth of the interest claim Harbor has now abandoned, we reverse the grant of summary judgment as to interest owed.

3. Absent a judgment on the principal, Harbor is not entitled to an award of attorney fees under OCGA § 13-1-11. In the trial court’s first judgment, later set aside, it awarded “reasonable attorney! ] fees in the amount of $20,405 (15% of first $500 and 10% of the remainder),” which is the percentage of the debt which OCGA § 13-1-11 (a) (2) construes as constituting “reasonable fees.” The amended final judgment simply awarded $20,405 without further explanation.

Harbor argues that OCGA § 13-1-11 does not apply, and therefore it was not required to give Fleming notice that it had ten days to pay the principal and avoid an assessment of attorney fees. Preter-mitting whether OCGA § 13-1-11 applies, absent a judgment on the principal amount, Harbor is not entitled to an award of $20,405 attorney fees under the surety agreement or the indemnity contract. We make no ruling on whether Harbor may be entitled to attorney fees for bringing this action and litigating until the principal was paid.

We note that in pleadings filed in the trial court and this court, Harbor asserts, without support from the record before us, that Fleming “stole” the money due the subcontractor and posits that the statute was designed to protect debtors, not “thieves.” Under the Georgia Rules of Professional Conduct, lawyers have a duty to raise only meritorious claims and contentions (Rule 3.1 of Bar Rule 4-102) and to act with fairness toward the opposing party (Rule 3.4 of Bar Rule 4-102), rules which reflect that an attorney should act with professional courtesy and not resort to hyperbole unsupported by the record. Such invective, while colorful, does nothing to further the legal argument being presented and is not helpful to the court.

Decided June 30, 2011.

Wiseman, Blackburn & Futrell, James B. Blackburn, for appellants.

Jones, Osteen, Jones & Arnold, G. Brinson Williams, Jr., for appellees.

Judgment reversed.

Adams and Blackwell, JJ., concur.

       Harbor also sued Fleming for its share of profits from ten construction contracts, but dismissed those claims after the parties participated in binding arbitration.

       The trial court set aside its first order upon Fleming’s representation that it had not received a copy of the order and did not know it had been issued until after the time to bring an appeal had expired.


text:
    A11A0569.
    WILCOX v. THE STATE.
    (713 SE2d 468)
   Dillard, Judge.

Following a jury trial, Julius Cornell Wilcox was convicted of burglary. Wilcox appeals his conviction, challenging the sufficiency of the evidence. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the verdict, the record shows that shortly after midnight on May 22, 2008, an officer with the Fitzgerald Police Department observed Wilcox riding a bicycle while carrying a tire iron and a black saw case, and wearing what appeared to be a brand new tan leather tool belt around his waist. Due to the time of night and the officer’s awareness of a recent outbreak of burglaries in the area, the officer stopped Wilcox for questioning. When the officer requested identification, Wilcox stated that he did not have his driver’s license because he left it at home. Wilcox then gave his name as Cornell Wilcox, along with his birth date, and the officer ran that information through the Georgia Crime Information System (“GCIS”). GCIS returned a notification that the Ben Hill County Sheriff s Department had issued an arrest warrant for a Julius Wilcox with the same birth date “Cornell” had given to .the officer. When asked if he knew a Julius Wilcox, Wilcox told the officer that Julius was his cousin.

Unable to sufficiently identify Wilcox, the officer called a deputy with the Ben Hill County Sheriffs Department for assistance, but the deputy was also unable to identify Wilcox or otherwise determine if he was the subject of the outstanding warrant. When questioned as to why he was out so late, Wilcox explained that he was an independent contractor and had just left work at 127 Brunswick Avenue, where he had been “pulling up boards.” Not satisfied that Wilcox had accurately identified himself, the officers allowed Wilcox to ride his bicycle to his trailer to retrieve his identification while they followed in their patrol cars.

En route to his residence, Wilcox darted between two trailers on his bicycle, through a space too narrow for the patrol cars to fit. The officers then lost sight of Wilcox and were unable to locate him during their subsequent search of the area. The officers nevertheless went to the trailer Wilcox identified as his own and spoke with his wife, who confirmed that Julius Wilcox resided at that address.

Thereafter, officers went to 127 Brunswick Avenue, where Wilcox claimed to have been working that evening, to investigate. The officers observed that the front door of the dwelling was open and the back window was broken. Tool marks indicated that the window had been pried open. A five-gallon bucket was also overturned beneath the window, and the officers observed footprints in sand surrounding the area. Inside, the house was in disarray. The homeowner was subsequently notified of what the officers determined had been a burglary.

The next day, following an inspection and inventory, the homeowner informed police that he was missing a reciprocating saw and its plastic case, a new tan leather tool belt, and a hammer. The homeowner was not currently living in the house but was remodeling it, and he stated that the door had been locked on the night of the burglary and that he had neither hired anyone to perform the renovations nor given anyone permission to enter the home.

After learning that Julius Wilcox was suspected in the burglary, the homeowner contacted Wilcox’s father, who he knew from prior business dealings. The homeowner later met with Wilcox, who denied stealing the missing items and stated that someone with a beard similar to his own had stolen his bicycle. Wilcox’s neighbor, however, testified that he had loaned a tire iron to Wilcox the evening before the burglary, and at that time, Wilcox had been riding a bicycle. The tire iron was returned and left beside the neighbor’s truck the morning after the burglary, and the neighbor relayed this information to the police.

Thereafter, a warrant was issued for Wilcox’s arrest, he was indicted on one count of burglary, and he was subsequently convicted of same. He then ñled a motion for a new trial, which the trial court denied. This appeal follows.

Wilcox alleges that the evidence was insufficient to support his conviction for burglary. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and Wilcox no longer enjoys a presumption of innocence. We do not reweigh the evidence, and the scope of our review is limited to determining whether the evidence is sufficient to support the conviction. For evidence to be insufficient as a matter of law, we must conclude that no rational juror could find the essential elements of the crime beyond a reasonable doubt. Consequently, the jury’s verdict will be upheld “[a]s long as there is some competent evidence ... to support each fact necessary to make out the State’s case.”

In the case sub judice, Wilcox was charged with committing burglary by unlawfully entering the house of another with the intent to commit a theft. Wilcox argues, however, that there is a lack of physical evidence linking him to the crime because the stolen property was never recovered for the homeowner to positively identify, and as such, the evidence is insufficient to support his conviction. But as we have previously explained, a conviction may be based on circumstantial evidence, and “the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else.” And in general, questions of reasonableness are for the jury. Furthermore, testimony from one witness is sufficient to establish a fact; and the recent possession of stolen goods, when unsatisfactorily explained, gives rise to an inference of guilt of burglary and is probative evidence of the crime, by which rational jurors can find guilt beyond a reasonable doubt. Whether a defendant’s explanation is reasonable or satisfactory is, again, a question for the jury. Finally, stolen items need not be recovered to sustain a conviction for burglary.

Decided June 30, 2011.

Timothy L. Eidson, Steven D. Knittle, for appellant.

And here, Wilcox was identified in court by officers as the man they observed riding the bicycle on the night in question. Additionally, the officers saw Wilcox carrying items the homeowner later described as missing from his residence, along with a tire iron that a neighbor testified as having been loaned to Wilcox the previous day. Furthermore, Wilcox’s own statements placed him at the scene of the burglary when he told officers that he had just left 127 Brunswick Avenue. The reasonableness of Wilcox’s explanation (i.e., that he had been working at the residence) was a question for the jury, especially in light of the surrounding circumstances and the homeowner’s testimony to the contrary. Moreover, Wilcox attempted to mislead the police as to his identity and later fled from them. Based on this evidence, the jury could properly infer that Wilcox was guilty of burglary.

Accordingly, for all of the foregoing reasons, we affirm Wilcox’s conviction.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

Denise D. Fachini, District Attorney, for appellee.

        See OCGA § 16-7-1.

        See, e.g., Brown v. State, 288 Ga. 902, 904 (1) (708 SE2d 294) (2011) (citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979)).

       The tool belt, saw, saw case, and hammer were never recovered.

        See, e.g., Goddard v. State, 242 Ga. App. 154, 154 (529 SE2d 184) (2000) (“[Tjhe evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence!.]” (citation and punctuation omitted)).

        See, e.g., id. at 154; see also Harris v. State, 308 Ga. App. 456, 456 (707 SE2d 878) (2011) (“It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.” (citation and punctuation omitted)).

        See, e.g., Goddard, 242 Ga. App. at 154 (1).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citation and punctuation omitted).

        See OCGA § 16-7-1 (“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!.]”).

        Collins v. State, 304 Ga. App. 11, 12 (695 SE2d 343) (2010) (punctuation omitted) (quoting Daugherty v. State, 283 Ga. App. 664, 667 (1) (a) (642 SE2d 345) (2007)).

        See, e.g., id. at 12.

        See OCGA § 24-4-7 (“The existence of a fact testified to by one positive witness is to be believed, rather than that such fact did not exist because many other witnesses who had the same opportunity of observation swear that they did not see or know of its having existed.”); OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

        See Collins, 304 Ga. App. at 13 (1) (“[0]nce the State showed that [the defendant] possessed goods that were stolen in a burglary, an unsatisfactory explanation of that possession supports his burglary conviction.” (punctuation omitted)); Rivera v. State, 293 Ga. App. 215, 217 (666 SE2d 739) (2008) (finding sufficient evidence to support conviction when the defendant possessed stolen items shortly after the burglary, falsely identified herself, and sought to evade police); Roberts v. State, 277 Ga. App. 730, 731-32 (627 SE2d 446) (2006) (sufficient evidence to support conviction when defendant possessed stolen items and tools used during commission of robbery, and fled from police).

        See, e.g., Thomas v. State, 256 Ga. App. 712, 713 (1) (569 SE2d 620) (2002) (“Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.” (citation and punctuation omitted)).

        See, e.g., Massey v. State, 247 Ga. App. 827, 828 (1) (545 SE2d 66) (2001).

        See OCGA § 24-4-7; OCGA § 24-4-8.

        See Thomas, 256 Ga. App. at 713 (1).

        See, e.g., Collins, 304 Ga. App. at 12; Rivera, 293 Ga. App. at 217; Roberts, 277 Ga. App. at 731-32.


text:
    A11A0690.
    WHITE v. THE STATE.
    (714 SE2d 31)
   Blackwell, Judge.

Darryl White was tried by a Mitchell County jury and convicted of possession of cocaine with intent to distribute and felony obstruction of a law enforcement officer. White argues on appeal that he was deprived at trial of the effective assistance of counsel because his trial lawyer failed to file a motion to suppress certain evidence found on his person when he was arrested. He also claims that the evidence adduced at trial is not sufficient to sustain his convictions and that the court below erred when it denied his request to charge on a lesser included offense, when it denied his motion to strike a juror for cause, when it allowed a forensic chemist to opine that the substance found on his person was, in fact, cocaine, and when it allowed a police officer to opine that powder on digital scales found on his person appeared to be cocaine residue. We find no merit in these claims of error and affirm the judgment below.

Viewed in the light most favorable to the verdict, the evidence adduced at trial shows that two police officers saw White walking in the “middle of the northbound lane” of a Pelham street at 2:00 a.m. One officer said that White was “staggering and stumbling.” Concerned for the safety of both White and any motorist who might be traveling on the same street, the officers stopped their car and approached White. As they approached him, they noticed a plastic cup in his hand and the odor of alcohol on his breath. When the officers smelled the contents of the plastic cup, they detected an even stronger odor of alcohol. The officers then decided to arrest White for unlawfully walking upon the roadway and for unlawfully walking upon a roadway while under the influence of alcohol. When the officers attempted to arrest White, he tried to run away. A struggle ensued, during which White kicked and bit the officers. After the officers subdued White, one searched White and found digital scales and a bag containing what appeared to be cocaine in the pockets of his pants. A third officer, who worked with the local drug task force, arrived on the scene after the arrest and conducted a field test of the contents of the bag, which indicated the presence of cocaine. The bag subsequently was sent to the Georgia Bureau of Investigation for scientific analysis of its contents, which confirmed that the substance in the bag was cocaine.

1. We turn first to the contention that White was deprived of the effective assistance of counsel because his lawyer did not move to suppress the evidence discovered as an incident of his arrest. White says that the officers had no reasonable suspicion that he was engaged in criminal wrongdoing when they first approached him, and for this reason, he argues, evidence obtained when he was arrested is the fruit of an unlawful seizure and would have been suppressed, if only his lawyer had filed a motion to suppress. We disagree.

Even assuming that the officers lacked a reasonable suspicion of criminal wrongdoing when they first approached White, they did not need any reasonable suspicion to walk up to him on a public street. As this Court and our Supreme Court have explained many times before, encounters between police officers and citizens come in three varieties, at least as far as the Fourth Amendment is concerned: encounters involving no coercion or detention, which are outside the purview of the Fourth Amendment altogether; brief seizures, which require an officer to have a reasonable suspicion of criminal wrongdoing; and custodial arrests, which require probable cause. See In the Interest of D. H., 285 Ga. 51, 53 (2) (673 SE2d 191) (2009); Lucas v. State, 284 Ga. App. 450, 452 (644 SE2d 302) (2007); State v. Dukes, 279 Ga. App. 247, 248 (630 SE2d 847) (2006). With respect to the first kind of encounter, one involving no coercion or detention, “police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” Dukes, 279 Ga. App. at 248-249 (citation and punctuation omitted). “So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.” Lucas, 284 Ga. App. at 452 (citation and punctuation omitted).

In this case, the initial contact between the officers and White was such an encounter. The officers did not seize White because there is no indication that they laid hands upon him, commanded him to stop, or created the impression that White could not just walk away. To the contrary, the officers simply approached White in a public place and questioned him, which they were entitled to do. See Dukes, 279 Ga. App. at 249. When the officers lawfully approached and questioned White, the smell of alcohol on White’s person, the stronger smell of alcohol emanating from his cup, and their earlier observations of White staggering and stumbling in the middle of the roadway gave the officers probable cause to arrest White for unlawfully walking upon the roadway while under the influence of alcohol. See OCGA § 40-6-95. The cocaine and digital scales subsequently found in White’s pockets were discovered pursuant to a lawful search incident to an arrest and were not, as argued by White, seized in violation of the Fourth Amendment. See Miller v. State, 221 Ga. App. 494, 496 (471 SE2d 565) (1996) (physical precedent only); Clark v. State, 212 Ga. App. 486, 488 (441 SE2d 885) (1994). Consequently, and as the court below properly concluded, any motion to suppress would have been without merit, and as a matter of law, an accused is not deprived of the effective assistance of counsel when his lawyer fails to file a motion that has no merit. See Smith v. State, 303 Ga. App. 831, 834 (2) (695 SE2d 86) (2010) (it is not deficient performance for counsel to fail to file frivolous motion); Arnold v. State, 253 Ga. App. 307, 308 (1) (560 SE2d 33) (2002) (same).

2. White contends that the evidence adduced at trial is insufficient to sustain his convictions. We do not agree. When we consider the sufficiency of the evidence, we must ask whether any rational jury could find proof of guilt beyond a reasonable doubt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Ferguson v. State, 307 Ga. App. 232, 233 (704 SE2d 470) (2010). And when we answer this question, we must bear in mind that it is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. So, if the record contains some competent evidence to prove each element of the crime of which the defendant was convicted, even if that evidence was controverted at trial, we must uphold the conviction. Id.

(a) Possession with Intent to Distribute Cocaine. White says the evidence does not sustain his conviction for possession with intent to distribute cocaine because there was some evidence that another man owned both the pants in which the cocaine was found and the cocaine found in a pocket of the pants, notwithstanding that White was wearing the pants at the time of his arrest. Apparently, this other man told police officers that White accidentally put on the man’s pants, without knowing cocaine was in the pocket, after the two spent the night drinking. Nevertheless, one of the officers testified that, in his opinion, the statement of the other man was difficult to believe because the other man was much smaller than White and the pants, therefore, would have been “twice too big” for the other man. Moreover, after this officer asked the other man to speak with someone on the drug task force, the man refused to give a taped interview about the pants, and he failed to appear at White’s trial despite being subpoenaed. The jury was entitled to disbelieve the statement of the other man, especially considering that the man refused to give a formal, taped statement and refused to appear and testify at White’s trial. The evidence was sufficient to enable a rational jury to conclude beyond a reasonable doubt that White possessed the cocaine in the pants he was wearing at the time of his arrest. See Johnson v. State, 281 Ga. App. 7, 8-9 (1) (635 SE2d 278) (2006) (jury entitled to disbelieve defendant’s claim that pants containing contraband in the pocket did not belong to him).

White also says that the State failed to prove beyond a reasonable doubt that the substance in the bag in his pants contained cocaine. White notes that the State only introduced testimony from one of two forensic chemists who were involved in testing the substance to verify it was cocaine, and without testimony from the second chemist, White argues, the evidence did not prove that the substance was cocaine. This argument is completely without merit. After being qualified as an expert witness, one chemist described the testing of the substance and the procedures and policies that the laboratory uses to ensure that the test results are reliable. She further testified that she prepared samples of the substance for testing, that the substance was tested in accordance with lab procedures, that the crime lab ran two different tests on the substance (one that she personally ran), that the results were peer reviewed, and that, in her opinion, the substance found in White’s pocket consisted of 10.36 grams of cocaine. This evidence, coupled with the testimony of the drug task force officer about the field test that indicated the presence of cocaine, was sufficient to permit a rational trier of fact to find White guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. See Davis v. State, 304 Ga. App. 355, 364 (7) (696 SE2d 381) (2010).

(b) Obstruction of a Law Enforcement Officer. White also argues that the evidence is insufficient to sustain his conviction for felony obstruction of a law enforcement officer because, he says, the evidence does not show that the officers were engaged in the lawful discharge of their duties at the time the alleged obstruction occurred or that White “offered or did violence” to the officers. This contention has no merit. A person commits felony obstruction of a law enforcement officer when he “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer.” OCGA § 16-10-24 (b). As we found in Division 1, the officers had probable cause to arrest White, so they were in the lawful discharge of their official duties at the time of the obstruction. See Mack v. State, 305 Ga. App. 697, 698-699 (2) (700 SE2d 685) (2010). And the evidence adduced at trial shows that White bit both officers and kicked one several times in the abdomen as they were attempting to arrest him, so it clearly establishes that White was “offering or doing violence” to the officers at the time of the obstruction. See Gillison v. State, 254 Ga. App. 232, 232-233 (1) (561 SE2d 879) (2002) (kicking at officer and making verbal threats authorized felony obstruction conviction).

3. We turn next to the contention that the trial court erred when it denied a request to charge the jury on misdemeanor obstruction as a lesser included offense. We conclude that such a charge was not warranted by the evidence. “While misdemeanor obstruction is a lesser included offense of felony obstruction, where the evidence shows completion of the greater offense, it is not necessary for the court to charge on a lesser included offense.” Williams v. State, 301 Ga. App. 731, 733-734 (4) (a) (688 SE2d 650) (2009) (citations and punctuation omitted). And, as we said in Division 2 (b), the evidence here plainly shows the completion of the greater offense, obstruction that involves “offering or doing violence” to an officer. We cannot accept the contention that “there is a question of fact as to whether kicking and biting constituted violence for the purposes of felony obstruction.” We have said before that kicking at an officer amounts to felony obstruction. See Gillison, 254 Ga. App. at 232-233 (1). This claim of error lacks merit.

4. In a one-paragraph argument, White asserts the trial court erred when it refused to strike a juror for cause because the daughter-in-law of this juror served on the grand jury that indicted White. White, without citing any authority, claims the juror was ineligible to serve on the jury due to her relationship to the grand juror. We disagree. There is no rule that a trial juror cannot be related to a grand juror in the same case. See King v. State, 273 Ga. 258, 270-271 (24) (539 SE2d 783) (2000) (court did not abuse discretion in denying motion to strike juror whose husband served on grand jury that indicted defendant). And White had the opportunity to explore whether the juror had discussed the case with her daughter-in-law and thereby had formed any opinions about the case. Yet, White points us to no evidence in the record showing any bias on the part of the juror. In fact, the juror testified that she was not even aware of the fact that her daughter-in-law had been on a grand jury until she saw something with her name on it — presumably the indictment itself — in the jury room. She further testified that she could be fair and impartial in this case. Accordingly, the trial court did not abuse its discretion in refusing to strike the juror for cause. See id.

5. The trial court did not err in admitting testimony that the substance found in the bag in White’s pants was cocaine. As we said in Division 2 (a), a forensic chemist testified that the substance found was, in fact, cocaine. While the State did not introduce testimony from another technician who performed one of the two tests that identified the substance as cocaine, that does not invalidate the testimony from the technician who did testify as to this fact given the circumstances and evidence in this case. See Haywood v. State, 301 Ga. App. 717, 722 (3) (689 SE2d 82) (2009). And White never timely objected to the testimony of the forensic chemist who appeared at trial and testified. This enumeration of error lacks merit.

6. In his final enumeration of error, White argues that an officer improperly was allowed to testify that the digital scales found in White’s pocket had “what appears to be cocaine residue on it.” White objected that “there has been no testimony at all that any substance [on the scales] was tested for cocaine.” That is true enough, of course, but as the trial court correctly observed, the officer did not say that the substance was, in fact, cocaine residue or had tested positive for cocaine. Instead, he simply said that it had the appearance of cocaine residue. And White did not object that the officer had no basis on which to opine that the substance had the appearance of cocaine residue, nor did he voir dire the officer on his experience with cocaine residue. It appears, therefore, that the objection made at trial was without merit, and White cannot raise a new objection on appeal. See Richardson v. State, 277 Ga. App. 429, 431 (4) (626 SE2d 518) (2006) (argument waived where ground for objection raised on appeal is different from ground raised at trial).

Decided June 30, 2011.

John G. Edwards, for appellant.

Joseph K. Mulholland, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

In any event, even assuming that it was improper for the officer to testify that the digital scales found in White’s pocket “appears to” have cocaine on it, we conclude that any error in allowing the testimony was harmless. When the officer gave this testimony, an expert already had testified that the substance in the bag also found in White’s pocket was, in fact, 10.36 grams of cocaine. Cf. Scott v. State, 219 Ga. App. 906, 909 (4) (467 SE2d 348) (1996) (any error in permitting officer to testify, without first being qualified as an expert, that substance acquired from defendant in undercover buys appeared to be cocaine was harmless because qualified expert had earlier testified that substance was, in her opinion, cocaine). It is highly probable that the testimony that cocaine residue appeared to be on the scales had no effect on the outcome of the case, and White offers us no reason to conclude otherwise. See id.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       White was acquitted of being a pedestrian under the influence of alcohol.

       See Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010).

       OCGA § 40-6-96 requires that, when a sidewalk or shoulder is available, a pedestrian must walk upon the sidewalk or shoulder of the road, rather than upon the roadway itself. When no sidewalk or shoulder is available, OCGA § 40-6-96 (d) provides, in pertinent part, that “any pedestrian standing or striding along and upon a highway shall stand or stride as near as practicable to an outside edge of the roadway.”

       OCGA § 40-6-95 provides that “[a] person who is under the influence of intoxicating liquor or any drug to a degree which renders him a hazard shall not walk or be upon any roadway or the shoulder of any roadway.”

       We are not so sure that the officers lacked a reasonable suspicion of criminal wrongdoing sufficient to permit an investigatory stop under Terry u. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968), when they first encountered White. When an officer sees a person “staggering and stumbling” in the street at 2:00 a.m., we think the officer may well have proper grounds to conduct an investigatory stop. But because the officers did not approach White in a coercive manner at first, no seizure occurred until they later subdued and arrested him, and we need not decide definitively whether the officers had adequate grounds for an investigatory stop.

       That the jury ultimately found White not guilty of violating OCGA § 40-6-95 is not determinative of whether the officers had probable cause to arrest him for that crime. See Steinberg v. State, 286 Ga. App. 417, 419 (1) (650 SE2d 268) (2007).

       We also note that White never objected to the testimony of this forensic chemist on the grounds that she could not testify about the test actually conducted by the other chemist. White only objected later, when the State tendered the bag of cocaine as evidence. Even if this objection had been upheld, the testimony of the chemist that the bag, in fact, contained cocaine, as well as the testimony of the officer that the same bag tested by the crime lab had been seized from White on the night of his arrest, came into evidence without objection.

       The fact that this chemist did not personally load the samples into the machine or personally perform one of the tests does not demand a different result. The chemist testified that she unloaded the samples, that she performed a number of checks and balances to ensure the samples were in the right location at the right time, and that she reviewed all the standards and sequencing before concluding that the substance was cocaine. We have said before that an expert need not testify to the validity of every step that went into the formulation of his results and may base his opinion on data collected by others. See Haywood v. State, 301 Ga. App. 717, 722 (3) (689 SE2d 82) (2009).

       At the hearing on White’s motion for new trial, his trial lawyer testified and was asked: “Do you think it would have affected the outcome of the case if the officer was not — had not testified about some alleged cocaine residue on a set of scales?” The trial lawyer responded: “No.”


author: McFadden, Judge.

text:
    A11A1082.
    SMITH v. THE STATE.
    (713 SE2d 452)
   McFadden, Judge.

A jury found Royal Clifford Smith guilty of aggravated sexual battery, criminal attempt to commit child molestation, and two counts of child molestation. Smith appeals, challenging the sufficiency of the evidence. He also argues that the trial court erred in failing to charge the jury on sexual battery as a lesser included offense of aggravated sexual battery and child molestation. Finally, he challenges the trial court’s jury instruction regarding responsibility for sentencing. We find the evidence sufficient. We also conclude that the evidence did not support an instruction on sexual battery and that the trial court properly charged the jury on responsibility for sentencing. Accordingly, we affirm.

1. On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and the evidence must be viewed favorably to the jury’s verdict. See Duvall v. State, 273 Ga. App. 143 (1) (614 SE2d 234) (2005). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the jury was authorized to find the defendant guilty beyond a reasonable doubt. See id.

So viewed, the evidence shows that in 2005, a middle school student noticed that her best friend, 12-year-old L. G., was acting strangely, withdrawing from people and crying at school. The friend asked L. G. what was wrong, and L. G. confided that one of her relatives had touched her breasts and vaginal area. Concerned by the outcry, the friend took L. G. to the school counselor. The counselor spoke with L. G., who reported that Smith, her aunt’s live-in boyfriend, had touched her breasts and put his hand down her pants. The counselor called the police.

As part of the police investigation, L. G. was interviewed in a child-friendly environment by a trained interviewer. The interview was recorded and shown to the jury. During the interview, L. G. recounted the events in detail. She asserted that sometime in 2004, she spent the night with her younger cousin, and they slept in a bed with Smith and her aunt. As they lay in the bed, Smith rubbed L. G.’s breasts, then placed his finger inside her vagina and moved it around. He also took her hand and tried to place it on his private part, but she moved away from him. Two more incidents occurred on Valentine’s Day weekend in 2005, when L. G. again spent the night with her cousin. Smith took L. G. and the cousin to see a movie. In the theater, he reached under L. G.’s clothing and rubbed her breasts. That night, while everyone else was asleep, Smith again touched her breasts and tried to reach down her pants, but she managed to get away. Smith told L. G. not to report the incidents, and she kept quiet for a long time because she was afraid of him.

At trial, L. G. testified briefly about the incidents, stating: “[Smith] touched me. He touched my breasts and my vagina.” She provided no further details at that point, but testified that she gave a detailed account during the recorded interview, in which she described “what happened, how it happened.”

On appeal, Smith asserts that the State failed to present sufficient evidence of aggravated sexual battery. We disagree. “It constitutes an act of aggravated sexual battery for a person to penetrate intentionally and without consent the sexual organ of another with his finger or other foreign object .’’ Hendrix v. State, 230 Ga. App. 604, 607 (4) (497 SE2d 236) (1997); see also OCGA § 16-6-22.2 (b). Describing the incidents during the videotaped interview, L. G. stated that Smith put his finger inside her vagina and moved it around. This evidence supports the aggravated sexual battery conviction. See OCGA § 16-6-22.2 (b); Hendrix, supra at 607 (5). Although Smith argues that the State did not establish that L. G. understood the female anatomy, she spoke in clear, recognizable terms, and the jury was responsible for assessing the credibility of her statements. See Walker v. State, 277 Ga. App. 485, 486 (1) (627 SE2d 54) (2006).

Smith also argues that the State did not prove the intent required to support a child molestation conviction. A person commits child molestation by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). Whether a defendant has the necessary intent “is peculiarly a question of fact for determination by the jury.” (Punctuation omitted.) Duvall, supra at 143 (1) (a). In many instances, “[ijntent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this.” (Punctuation omitted.) Howard v. State, 268 Ga. App. 558, 559 (602 SE2d 295) (2004).

The evidence shows that Smith touched L. G. inappropriately on three different occasions, including one in which he placed his finger in her vagina and moved it around. He also tried to place L. G.’s hand on his private part. This evidence was sufficient to raise an inference that Smith acted on each occasion — including the two instances of breast fondling that form the basis for the child molestation charges — with the intent to arouse or satisfy his sexual desires. See Duvall, supra; Howard, supra.

2. Smith argues that the trial court erred in failing to give his requested charge on sexual battery as a lesser included offense of aggravated sexual battery. As noted above, a conviction for aggravated sexual battery requires proof of penetration, while a sexual battery conviction does not. Compare OCGA § 16-6-22.2 (defining aggravated sexual battery) with OCGA § 16-6-22.1 (defining sexual battery). The State alleged that Smith committed aggravated sexual battery by digitally penetrating L. G. According to Smith, however, at least some evidence showed that he touched L. G.’s vagina without penetration, entitling him to a jury instruction on sexual battery.

It is true that a trial court must charge a jury on a lesser included offense if any evidence — even slight evidence — supports the charge. See Walker v. State, 279 Ga. App. 749, 751 (3) (a) (632 SE2d 482) (2006). But a charge request “must be apt, a correct statement of law, and precisely adjusted to some theory in the case.” Anderson v. State, 264 Ga. App. 362, 365 (3) (590 SE2d 729) (2003). If the evidence shows either the completed offense as indicted or no offense at all, the trial court should not instruct the jury on a lesser grade of the crime. See Walker, 279 Ga. App. at 751-752.

Smith contends that the evidence supported a charge on sexual battery because L. G. testified at trial that he “touched” her vagina, and her initial outcry did not specifically reference digital penetration. In Smith’s view, this evidence conflicted with the more detailed description of events L. G. gave during her recorded interview. He further argues that the jury could have resolved the conflict by finding that a touching occurred without penetration.

L. G.’s recorded interview, which describes penetration, is certainly more detailed than her trial testimony and initial outcry. She testified, however, that her explicit description from the interview was “how it happened.” Moreover, her testimony that Smith touched her vagina is not inconsistent with penetration, and she never denied that penetration occurred. Simply put, the trial evidence does not conflict with L. G.’s detailed, recorded statement regarding penetration. We further note that Smith “did not rely at trial on a lesser-included-offense defense” or claim that he touched L. G. without penetrating her. Swailes v. State, 188 Ga. App. 709, 712 (2) (373 SE2d 825) (1988). Instead, he offered testimony that L. G. fabricated the molestation claims, and he argued that the incidents she reported never happened.

Under these circumstances, the evidence “shows either the completed offense as charged or no offense.” Walker, 279 Ga. App. at 751. The trial court, therefore, properly refused to give the requested charge. See Anderson, supra (charge on lesser included offense unnecessary where evidence supported conviction on indicted charge, there was no evidence of lesser crime, and defendant denied that he committed any crime); Swailes, supra (same).

3. Smith also claims that the trial court should have instructed the jury on sexual battery as a lesser included offense of child molestation. The indictment charged Smith with two counts of molestation based on his fondling of L. G.’s breasts. According to Smith, the State failed to present direct evidence of the intent to arouse or satisfy sexual desires necessary to support a molestation conviction. See OCGA § 16-6-4 (a) (1). He argues, therefore, that the jury could have found him guilty of the lesser included offense of sexual battery, a crime that does not have the same intent requirement.

Decided June 30, 2011.

George B. Sparks, Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Susan L. Franklin, Assistant District Attorneys, for appellee.

Smith is correct that if the evidence showed a touching without the intent necessary for child molestation, he would have been entitled to a jury instruction on sexual battery as a lesser included offense. See Linto v. State, 292 Ga. App. 482, 486 (4) (664 SE2d 856) (2008). As detailed in Division 1, however, the evidence supported a finding of the requisite intent here. Smith has pointed to no evidence demonstrating that a touch occurred without the necessary intent. And he did not defend the case on the ground that he touched L. G. without intent. He pursued the “all or nothing” defense that L. G. made up her entire story.

In Linto v. State, supra, we explained that such circumstances do not support a charge on sexual battery as a lesser included offense of child molestation. On the contrary, they demonstrate “either . . . the indicted crime[ ] or no crime[ ] at all.” Linto, supra at 487. Accordingly, a jury charge on sexual battery was not warranted. See id.; see also Hilliard v. State, 298 Ga. App. 473, 475 (2) (680 SE2d 541) (2009) (“[Bjecause [the defendant] denied any contact with [the victim], the evidence presented at trial did not afford the jury the alternative of finding him guilty of sexual battery in lieu of child molestation.”); McGruder v. State, 279 Ga. App. 851, 855 (2) (b) (632 SE2d 730) (2006) (charge on sexual battery not required where evidence showed the intent necessary for child molestation and defendant asserted that touching never occurred); Walker, 279 Ga. App. at 752 (same).

4. Finally, Smith argues that the trial court erred in instructing the jury as follows: “You are only concerned with the guilt or innocence of the defendant. You are not to concern yourselves with punishment.” He claims that the reference to “innocence” here was improper and confusing because a jury is actually tasked with determining whether a defendant is guilty or not guilty. Our Supreme Court, however, has found that the exact language used by the trial court “is an accurate statement of the law which is not misleading, but is sufficiently clear to be understood by jurors of ordinary understanding.” (Punctuation omitted.) Roberts v. State, 276 Ga. 258, 260 (4) (577 SE2d 580) (2003). This claim of error, therefore, lacks merit.

Judgment affirmed.

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