text:
    A12A1985.
    WHITE v. THE STATE.
    (737 SE2d 324)
   Ellington, Chief Judge.

In connection with a vicious attack against Mark White’s ex-girlfriend, in her home and in the presence of her two young children, a Dougherty County jury found White guilty beyond a reasonable doubt of burglary, OCGA § 16-7-1 (b); aggravated assault, OCGA § 16-5-21 (a) (2) (with a deadly weapon); and two counts of cruelty to children in the second degree, OCGA § 16-5-70 (c). Following the denial of his motion for a new trial, White appeals, challenging the sufficiency of the evidence in several respects. For the reasons explained below, we affirm.

1. White contends that the evidence that he was the perpetrator of the charged offenses was “flawed” and, therefore, that the evidence was insufficient as a matter of law to convict him of any of the charges. On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict [,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. White and the adult victim had a child together, M. W, and lived together for about two years, until approximately September 2008. On September 12,2009, the adult victim was asleep in her bedroom, along with her seven-year-old daughter, A. L., and M. W, who was then two years old, when White broke into the apartment through a rear window and attacked her. White stabbed the adult victim in the neck, dragged her down the hall, and stabbed her hand. Although he put a cloth over her face at some point, the adult victim saw that the person stabbing her in the neck was White, and she positively and consistently identified him as the perpetrator.

After attacking the adult victim, White left the apartment. The adult victim crawled back to the bedroom and told A. L. to call 911; the adult victim also called her sister, who came to care for the children. The two child victims saw their mother as she received treatment from the ambulance crew, when she was seriously injured and covered in blood. The children screamed hysterically and asked if their mother was dead.

A crime scene technician lifted several fingerprints from the outside trim around the kitchen window that White forced open to gain entry. One print was of sufficient quality to allow comparison to White’s fingerprints. A fingerprint examiner concluded that the print was White’s. In addition, a forensic interview of A. L. was played for the jury. During that interview, A. L. described in detail the attack on her mother, which she witnessed, and identified the person who did it as “Mark White . . . [M. W.’s] daddy.”

It was for the jury to assess the witnesses’ credibility and to weigh evidence that identified White as the perpetrator, including resolving the issue of whether, under the circumstances, the adult victim had an adequate opportunity to identify White as the person who attacked her. Olive v. State, 291 Ga. App. 538, 539-540 (1) (662 SE2d 308) (2008). Because, contrary to White’s assertion, there was competent evidence that he was the perpetrator, we must uphold the jury’s verdict. Rankin v. State, 278 Ga. at 705.

2. White contends that the evidence showed, at most, that he committed family violence battery against the adult victim, with knowledge that the children were present and saw or heard the act, and that there was no evidence that he directed his conduct toward the two children or that he committed any act which might reasonably be expected to injure them. He contends that, as a result, the State’s case against him “fits best in the context of cruelty to children in the third degree,” which is a misdemeanor, rather than the second degree of that offense, a felony which carries a maximum potential punishment of ten years imprisonment. White argues that, under the circumstances, the rule of lenity requires that he receive the lesser punishment for the two counts of cruelty to children.

The rule of lenity applies where two or more statutes prohibit the same conduct while differing only “with respect to their prescribed punishments.” Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004). According to the rule, “[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of the two penalties administered.” (Punctuation and footnote omitted.) Brown v. State, 276 Ga. 606, 608-609 (2) (581 SE2d 35) (2003). “The rule of lenity applies where the same conduct would support either a misdemeanor or a felony conviction and requires that both crimes could be proved with the same evidence.” (Footnote omitted.) Rollf v. State, 314 Ga. App. 596, 598 (2) (b) (724 SE2d 881) (2012).

To consider White’s argument, therefore, we must compare the essential elements of these two offenses. Under OCGA § 16-5-70 (c), a “person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” Under OCGA § 16-5-70 (d) (2), on the other hand, a “person commits the offense of cruelty to children in the third degree when . . . [s]uch person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.” Notably, the third degree of the offense does not require proof that the child victim suffered “cruel or excessive physical or mental pain” or, indeed, that the victim suffered any other specific type or degree of harm, and, therefore, the statutes do not differ only with respect to their prescribed punishment. Although the jury could have found White guilty of the third degree of the offense, based on the violent attack he waged against the adult victim in the child victims’ presence, the evidence authorized the jury to find the additional element required for the second degree of the offense, that is, that White’s conduct caused the child victims to suffer cruel and excessive mental pain, as alleged in the indictment. Consequently, the rule of lenity does not require that White be punished only for the third degree of the offense. See Rollf v. State, 314 Ga. App. at 598-599 (2) (b) (Because “[f]irst degree cruelty to children requires proof that the perpetrator acted with malice and that the children suffered cruel or excessive physical or mental pain while third degree cruelty to children requires only that the perpetrator do an act with knowledge that a minor child is present and can see or hear the act[,] ... the two crimes cannot be proven by the same evidence, and the rule of lenity does not apply.”) (footnotes omitted); Lightning v. State, 297 Ga. App. 54, 60-61 (6) (676 SE2d 780) (2009) (rule of lenity did not require that the defendant be sentenced for the offense of battery, rather than aggravated assault; the two offenses do not address the same criminal conduct, since battery addresses specific harm to the victim, while assault addresses use of objects of a certain character).

Decided January 15, 2013.

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, for appellee.

3. White contends that the evidence is undisputed that the two-year-old victim, M. W, was asleep throughout the assault and, because she did not witness the violent attack, the evidence was insufficient to convict him of cruelty to children as to her. This argument fails for two reasons.

First, contrary to White’s contention, the evidence did not establish that M. W. slept throughout the attack. A. L. testified that, just after she called 911, M. W. was shaking; the jury was authorized to infer that, like A. L., M. W. awoke when she heard the adult victim screaming during the attack. Furthermore, OCGA § 16-5-70 (c) does not expressly require that the child victim’s cruel or excessive physical or mental pain arise immediately upon the defendant’s act of criminal negligence. See Walden v. State, 289 Ga. 845, 847-848 (1) (717 SE2d 159) (2011). The evidence was sufficient to support White’s conviction.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

       See OCGA § 16-5-70 (e).

       See also Dowling v. State, 278 Ga. App. 903, 904 (630 SE2d 143) (2006) (Whenever “statutory ambiguity creates uncertainty as to which sentencing scheme applies, the lesser penalty prevails.”) (footnotes omitted).

       We note that what constitutes cruel or excessive mental pain is for the jury to decide. See Walden v. State, 289 Ga. 845, 847-848 (1) (717 SE2d 159) (2011) (The evidence authorized the jury to find that the child victims suffered excessive mental pain from being kept in a house with a decomposing corpse that caused a pervasive stench even though there was no testimony that the children witnessed the victim’s death, knew of the death, saw the body, or were even bothered by the odor.).


source: Caselaw Access Project

author: MlKELL, Presiding Judge.

license: Public Domain

text:
    A12A0927.
    ALPHA NURSING SERVICES, INC. et al. v. VICKERY.
    (732 SE2d 760)
   MlKELL, Presiding Judge.

Following a bench trial, Alpha Nursing Services, Inc., and Saheed Ashogbon appeal from the judgment entered in favor of Dr. Samuel Vickery on his claims for specific performance of a lease/buy contract for an office building, and for attorney fees.

The evidence was that Saheed Ashogbon operated several businesses involved in the provision of home care and home healthcare services to Medicare recipients. These businesses were Alpha Nursing Services, Alpha Healthcare Systems, Alpha Nursing Training Institute, and Alpha Durable Medical Supply. According to Ashogbon, all of these businesses operated from 777 Cleveland Avenue, Atlanta, Georgia, with the only difference in their addresses being different suite numbers. All of these businesses were incorporated in Georgia and all had the same officers, boards of directors, and shareholders.

In 2008, Ashogbon was looking for office space in Commerce, in Jackson County, because he had filed an application to expand his business into northeast Georgia, including Jackson County. He saw a “for sale” sign in front of the building at 1981 North Elm Street, which had housed Dr. Samuel Vickery’s medical practice for decades until his retirement in October 2007. Ashogbon contacted Dr. Vickery and it is undisputed that, on February 19, 2008, a “Deed to Secure Debt with Power of Sale (Short Form) No. 140” was prepared by Dr. Vickery and signed by Ashogbon and Dr. Vickery. The body of the document stated:

The following agreement is a rent buy agreement between SamuelA. Vickery, M.D. andMr. Saheed Ashogbon, President/ CEO of Alpha Nursing Services, Inc. for the tract or parcel of improved property [property legal description]. The property is being leased for one year at the rate of $1,000.00per month for twelve months at which that time the property will be purchased for $1 SO, 000____The first month’s rent will be due at the signing of this contract and on the 5th day of each month thereafter. If renter buyer of this property does not pay due rent within fifteen days of due date this contract will be declared null and void and the business will be asked to vacate the property.

(Emphasis supplied.)

The signatures of Dr. Vickery and Ashogbon were witnessed by OduolaAdegoke and Michael Awosanya, associates of Ashogbon, and Shirley Martin, a long-time employee of Dr. Vickery. Martin heard Ashogbon say that he was going to lease the property for a year and, after that year, buy it. Neither Adegoke nor Awosanya testified. Ashogbon acknowledged that he signed the document and that he read it before he signed it.

Martin last worked in Dr. Vickery’s office the last week of February 2008. At that time, there were no problems with bugs, rodents, or mold. Mike Vickery, a second cousin of Dr. Vickery, ran a pest control company and had treated the office building monthly during Dr. Vickery’s occupancy of it. He was unaware of any infestation problems on the property. Someone from Alpha Nursing Services contacted Orkin Pest Control seeking treatment of Suite 100 at 1981 North Elm Street in Commerce in July 2008. A service agreement was signed on July 22, 2008, so that service could begin. When Orkin started servicing the building, no notation of any type of infestation was noted. Between July 23, 2008 and January 8, 2009, Orkin serviced the property four times. Orkin terminated the contract because Alpha Nursing failed to pay.

The city of Commerce requires that buildings be inspected when the occupant changes and a city inspector did that before Alpha Nursing Services occupied the building. No insect infestation or mold problems were found.

Ashogbon acknowledged that a flyer was prepared by his companies and distributed from the Atlanta offices, reflecting that Alpha Nursing Services, Inc., and Alpha Healthcare System, Inc., were operating an office at 1981 North Elm Street, Commerce, and were hiring certified nursing assistants, registered nurses, and van drivers. The Commerce address was listed on the website of Alpha Nursing and Alpha Healthcare as one of its offices when Alpha Nursing applied for its expansion into Jackson County. Also, the Commerce phone directory contained listings at that address for both Alpha Nursing and Alpha Healthcare Systems.

Because Ashogbon was out of the country and did not appear for trial, Badetito Obafemi, the accountant and assistant CEO for Alpha Nursing Services, Inc., Alpha Healthcare Systems, Inc., and Alpha Durable Supply, represented Alpha Nursing Services, Inc., at trial. Obafemi acknowledged that, although all corporate minutes had been requested during discovery and that he had seen some minutes, none were produced by Alpha Nursing. He also acknowledged that no one was going to testify concerning any mold or other health hazard presented by the building.

A letter, dated January 29, 2009, and signed by Awosanya on “Alpha Nursing Services, a Division of Alpha Healthcare System, Inc.” letterhead, was sent to Dr. Vickery stating that the 1981 North Elm Street building was being vacated due to mold infestation. A second undated letter, also signed by Awosanya on “Alpha Nursing Services, Inc. & Healthcare Systems” letterhead, was sent to Dr. Vickery seeking a release of lease based on mold, infestation of fleas and rodents, and HVAC problems. Appellants failed to pay the remaining rental payments and did not purchase the property.

On appellate review of a bench trial, the factual findings shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. In bench trials, the judge sits as trier of fact and the court’s findings are analogous to a jury’s verdict and should not be disturbed if there is any evidence to support them.

1. Our review has been hindered by appellants’ filing of numerous compound enumerations of error as well as enumerations which are unclear and unsupported by any citation of authority in violation of this Court’s rules. 3We remind counsel that

[o]ur requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.

2. In enumerations 1, 2, and 5, appellants argue that the trial court erred in finding that venue was proper in Jackson County, in failing to transfer the case to Fulton County, and in concluding that “venue is proper in Jackson County in regards to Alpha Nursing Services, Inc. in regards to this lawsuit.” They are addressed together.

In suits found on contracts, venue is proper in the county where the subject contract was made or to be performed if the corporation has an office and transacts business in that county.

All three of these enumerations are premised on the appellants’ disagreement with the trial court’s factual conclusions that Alpha Nursing Services, Inc., had an office and did business in Jackson County; that Ashogbon failed to observe any corporate formality with regard to Alpha Nursing; and that Ashogbon was the alter ego of Alpha Nursing. These factual findings are not clearly erroneous and these three enumerations are without merit.

3. The third enumeration is that the “trial court erred in finding that the plaintiff made a mistake in suing Alpha Healthcare instead of Alpha Nursing.”

While Alpha Healthcare was named in the original complaint, the trial court entered an order allowing substitution of Alpha Nursing for Alpha Healthcare following a hearing on the defendants’ motion to dismiss.

There is no written finding by the trial court that plaintiff made a mistake, only colloquy between court and counsel. Neither is there any specific ruling contained in any order of the court to this effect. Therefore, there is nothing presented by this enumeration for our review.

4. In enumerations 4 and 6, appellants argue that the trial court erred in concluding that Alpha Nursing was a party to the alleged contract and that appellants owe seven months rent.

These are arguments regarding the facts found by the trial court and we cannot say that the trial court’s findings were clearly erroneous.

5. Appellants argue in their seventh enumeration that the trial court erred in ruling that the “alleged contract constituted a contract to buy and a contract to sell when ordinary reading of [it] does not so lend itself. Further the court concluded that the alleged contract is enforceable despite a clear and unambiguous language in the contract to the contrary.”

[T]he construction of contracts involves three steps. At least initially, construction is a matter of law for the court. First, the trial court must decide whether the language is clear and unambiguous. If it is, the court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury. The existence or nonexistence of an ambiguity is a question of law for the court. If the court determines that an ambiguity exists, however, a jury question does not automatically arise, but rather the court must first attempt to resolve the ambiguity by applying the rules of construction in OCGA § 13-2-2.

Appellants’ argument is centered on the provision of the document which states that “[i]f the renter buyer of this property does not pay due rent within fifteen days of the due date this contract will be declared null and void and the business will be asked to vacate the property.” Having considered this argument, the trial court “implicitly finds that this right to declare the contract void was vested in the Plaintiff-Owner and that the Plaintiff never declared the contract void and thus permissibly waived this term of the contract.”

We find the trial court’s analysis of this provision consistent with the rules of contract construction and find no error.

6. In their eighth and ninth enumerations, appellants argue that the trial court erred in entering a judgment of specific performance where there is an adequate remedy at law and where specific performance “is at best an exercise in futility.” They are addressed together.

Since at least 1873, it has been the law of this state that “in written contracts for land, where they are certain, fair and capable of being performed, equity will decree their performance.” We find no error in the trial court’s ruling.

7. Appellants’ tenth enumeration sets out no ruling made by the trial court and contains no authority in support of their position, presenting nothing for our review.

8. In their eleventh and twelfth enumerations, appellants argue that the trial court erred in awarding attorney fees and costs and in finding plaintiff’s evidence of these fees and costs adequate.

The trial court awarded attorney fees and costs based on its factual finding that Ashogbon never intended to go through with the purchase of the office building and, since he was also found to be the alter ego of Alpha Nursing, liability for the attorney fees and costs is joint. As set out above, there is evidence to support these findings and we find no error.

Decided August 30, 2012

Reconsideration denied January 16, 2013.

Kunle Ogundele, for appellants.

John T. Brown, for appellee.

Also, we find evidence to support the trial court’s compilation of the attorney fees and costs and there was no error in this regard.

9. The thirteenth enumeration is that the trial court erred in not dismissing the case for want of prosecution when Dr. Vickery was not present at trial due to his being in a nursing home.

No motion to dismiss for want of prosecution or any other objection to the absence of Dr. Vickery was voiced at trial, and we will not consider this issue for the first time here.

10. In their fourteenth and fifteenth enumerations, appellants contend that the trial court abdicated its role as a neutral and impartial arbiter and was prejudiced and biased toward Ashogbon.

No motion to recuse was filed below, nor were any objections made on the record to the trial court’s impartiality. Therefore, any such objections have been waived.

11. Finally, appellants complain of the trial court’s denial of their renewed motion for judgment on the pleadings.

Appellants’ initial motion for judgment on the pleadings was denied by the trial court’s order of January 20, 2011. The renewed motion, filed July 20, 2011, was denied by the trial court’s order of August 2,2011. The bench trial was conducted on August 22-23,2011, and judgment entered on September 13, 2011. Given that appellants did not'obtain a certificate of immediate review of the orders entered prior to final judgment, and given that they participated in the introduction of evidence before the factfinder, there is nothing for us to review regarding denial of the renewed motion.

Judgment affirmed.

Miller and Ray, JJ., concur.

       (Footnote omitted.) Zhou v. LaGrange Academy, 266 Ga. App. 445, 449 (1) (597 SE2d 522) (2004).

       See Currid v. DeKalb State Court Probation Dept., 274 Ga. App. 704, 706 (1) (618 SE2d 621) (2005).

       (Punctuation and footnote omitted.) Id.

       OCGA § 14-2-510 (b) (2).

       See Mariner Healthcare v. Foster, 280 Ga. App. 406, 411 (4) (634 SE2d 162) (2006).

        Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999).
      This Court and the Court of Appeals are courts of review. 1983 Ga. Const., Art. VI, Sec. V, Par. Ill; Art. VI, Sec. VI, Par. II. As appellate courts, we are courts for the correction of errors of law made by the trial courts. Mills v. State, 188 Ga. 616, 623 (4 SE2d 453) (1939). In appellate practice, an error of law is “a false or mistaken conception or application of the law. Such a mistaken or false conception or application of the law to the facts of a cause as will furnish ground for a review of the proceedings. . . .” Black’s Law Dictionary (5th ed.). An error of law has as its basis a specific ruling made by the trial court. In order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. OCGA § 5-6-40.
      Id.

        Zhou, supra.

       (Citations and punctuation omitted.) Woody’s Steaks, LLC v. Pastoria, 261 Ga. App. 815, 817 (1) (584 SE2d 41) (2003).

       (Citations and punctuation omitted.) Forsyth v. McCauley, 48 Ga. 402, 405 (1873). See also CDM Custom Homes v. Windham, 280 Ga. App. 728, 731-732 (1) (634 SE2d 780) (2006).

       See Felix, supra.

       He was represented at trial by his daughter, a physician, who had Dr. Vickery’s power of attorney for business matters.

       See Hunter u. Hunter, 289 Ga. 9, 10, n. 1 (709 SE2d 263) (2011).

       Id.


text:
    A12A1648.
    WHITE v. THE STATE.
    (732 SE2d 107)
   MlKELL, Presiding Judge.

Following a stipulated bench trial, Zione Cortes White appeals, contending that the trial court erred in denying his motion to suppress cocaine found following a traffic stop.

In reviewing a trial court’s ruling denying a motion to suppress . . . , the following three principles apply: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

Here, there were disputes as to the facts and credibility. Therefore, we view the evidence in favor of the trial court’s findings. So viewed, the evidence showed that, on August 9, 2011, Gwinnett County Police Officer Jones, assigned to the highway interdiction team under the Narcotics Unit, was on patrol on Interstate 85 in north Gwinnett County shortly after 10:00 p.m. Jones noticed that the car in front of him crossed over the center line and that the center brake light in the rear window was not functioning. Following a traffic stop, Jones found White driving and a woman in the front passenger seat. It took White an extended period of time to locate his documents, and Jones noticed that his hands were visibly shaking. Jones also noticed a strong overwhelming smell of air freshener which, in his experience, was sometimes used to mask the odor of narcotics. Jones asked White to step to the rear of his patrol car so that he could issue him a warning citation for the brake light. At that time, Jones asked White if he could conduct a pat-down search of him, and White agreed. Jones found a bulge in White’s rear pocket and asked him what it was. White said that it was $700 in cash. Jones continued to ask White questions as he wrote the warning, including where he had been and who was in the car. White said that he and Hoover, his girlfriend, had been to Atlanta to visit her aunt. Although he said they visited her regularly, he could not give an address or location of her residence. In running White’s South Carolina driving history, Jones had noticed some license suspensions. He asked White if he had ever been arrested for any narcotics violations, and White stated that he had been arrested for marijuana possession in the past. White became visibly nervous and started to move around. Jones went to the front of White’s car to verify the VIN and engaged Hoover in conversation as he was doing so. Asked about the purpose of their trip, Hoover responded that they had been to a mall in Atlanta, although she could not name the mall or describe its location. Jones returned to his patrol car and gave White his documents and warning citation. At this point, Jones asked White if he could search his car, and White said “yes.” Jones requested another officer to respond, and Officer Kissel arrived within five minutes. Jones asked Kissel to get Hoover out of the car and then asked White again, in front of Kissel, “[i]t’s okay for me to search the car?” White shook his head and said yes. In theglovebox, Jones found a grocery bag containing seven clear baggies which contained approximately 200 to 250 grams of cocaine.

White testified and denied that he consented to the search. He said that Jones obtained his car keys and searched his trunk before Kissel arrived. White denied being asked a second time to consent to the search.

The trial court’s findings based on disputed facts and credibility are not clearly erroneous.

1. White contends that there was no probable cause for the initial stop of his car by Jones.

Jones stopped White because he observed White’s car cross over the lane line without a signal and that the third brake light was not working. The argument made here that OCGA § 40-8-25 only requires two brake lights to be functioning was not made below and will not be considered here for the first time. Moreover, even if the issue were properly before us, it would be without merit.

Further, the argument based on the fact that Jones acknowledged that he did not stop every car he observed cross a line or with a broken brake light is also unavailing. “[W]hen an officer observes a traffic offense, the resulting traffic stop does not violate the Fourth Amendment ‘even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances.’ ”

Therefore, the trial court’s finding that the traffic stop was based on probable cause that a traffic violation had occurred was not clearly erroneous.

2. White also argues that he was illegally detained beyond the time of the traffic stop and, therefore, his consent to search was not valid.

Jones’ testimony, however, was that his questioning of White and Hoover took place during the time he was conducting his investigation of the traffic violations and writing the warning for the inoperable brake light. Further, upon handing the warning to White, he immediately asked for consent to search, and White gave it.

“We have held that, where an officer requests consent to search contemporaneously, or nearly so, with the moment the purpose of a traffic stop is fulfilled, a trial court is authorized to conclude that the request did not unreasonably prolong the detention.” Viewed most favorably to support the judgment, the evidence showed that White was legally detained when Jones requested consent to search.

Also, White’s argument that an officer may not engage in questioning which is unrelated to the traffic stop during the stop is without merit.

[Ejven when there is no basis for an officer to suspect that a person detained at a traffic stop is engaged in criminal activity unrelated to the stop, “police may lawfully ask questions during the course of the stop about such unrelated activity, so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop.”

Therefore, the trial court’s judgment is affirmed.

Decided August 31, 2012

Reconsideration denied January 16, 2013

Donn M. Peevy, for appellant.

Daniel J. Porter, District Attorney, Marlene S. Zekser, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       (Punctuation and footnotes omitted; emphasis supplied.) Ware v. State, 309 Ga. App. 426, 426 (710 SE2d 627) (2011). Accord Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       A verbal warning was given for crossing the lane line.

       White also testified, however, that he did not say anything when Jones opened his trank “because I gave consent to search and I felt like it was nothing I could really do, you know, being police officers.”

        Boykins v. State, 298 Ga. App. 654 (1) (680 SE2d 665) (2009).

        Lancaster v. State, 261 Ga. App. 348, 350 (1) (582 SE2d 513) (2003) (“If the officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later determination that the defendant’s actions were not a crime according to a technical legal definition or distinction determined to exist in the penal statute.”).

       (Punctuation and footnote omitted.) Hammont v. State, 309 Ga. App. 395, 397 (710 SE2d 598) (2011).

       (Citation and punctuation omitted.) Nix v. State, 312 Ga. App. 43, 46 (3) (717 SE2d 550) (2011).

       Id.

       (Punctuation and footnote omitted.) Hammont, supra at 397-398.


author: Boggs, Judge.

text:
    A12A1717, A12A1719, A12A1720.
    BROWN v. THE STATE (three cases).
    (737 SE2d 340)
   Boggs, Judge.

Freddie Brown, proceeding pro se, filed multiple appeals from orders disposing of various pro se motions he filed attempting to appeal from his guilty plea. For the reasons stated below, we reverse in Case No. A12A1717 and remand for the entry of an order granting Brown an out-of-time appeal. We dismiss the appeals in Case No. A12A1719 and Case No. A12A1720 as moot.

On August 28, 2008, Brown entered a guilty plea to armed robbery, the lesser included offense of robbery by intimidation on a second count of armed robbery, and possession of a firearm by a convicted felon. Immediately after sentence was imposed, Brown protested that the terms of the negotiated plea had been misrepresented to him and attempted to withdraw his plea. The trial court responded, “The request is noted for the record and I respectfully decline it.”

Brown’s trial counsel filed a motion for modification of sentence, and Brown filed a pro se motion to withdraw his guilty plea and a motion for appointment of appellate counsel. The trial court denied both the motion for modification of sentence and the motion to withdraw the guilty plea, but the record does not show any court action on or response to Brown’s motion for the appointment of appellate counsel, despite repeated inquiries by Brown and a second motion for the appointment of counsel.

Unrepresented by counsel, Brown attempted to file pro se notices of appeal from the orders denying the motion for modification of sentence and the motion to withdraw his guilty plea. But in both cases his notices of appeal were untimely, and this court dismissed his appeals. After dismissal of his appeals, Brown filed a flurry of pro se motions, including multiple motions for an out-of-time appeal. His motions for out-of-time appeal were denied, and he once again appeals.

1. “The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.” (Citations and punctuation omitted.) Leonard v. State, 293 Ga. App. 808, 809 (1) (668 SE2d 321) (2008). The procedural posture of Leonard is remarkably similar to that presented here. After sentencing on a guilty plea, Leonard filed a letter with the trial court seeking appointment of appellate counsel, but “[t]he record contains no evidence that appellate counsel was appointed or that there was any response to Leonard’s letter.” Id. Leonard filed a pro se motion for out-of-time appeal, which the trial court denied. Id. On Leonard’s appeal of that denial, we held:

Our appellate courts have held that an out-of-time appeal is the remedy for a frustrated right of appeal, where the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. A defendant has a right to appeal directly the denial of his timely motion to withdraw a guilty plea. A defendant is also entitled to the assistance of counsel for such a direct appeal. When a defendant’s right to directly appeal the denial of his motion to withdraw a guilty plea has been frustrated, he is entitled to an out-of-time appeal from the order on his motion.

(Citations and punctuation omitted.) Id. Observing that Leonard had attempted to enforce his right to appeal, that he was entitled to counsel on appeal, and that nothing in the record showed that the trial court responded to his request for counsel, we held:

Prejudice is presumed and the harmless error analysis does not apply where there has been a total denial of the assistance of counsel. Leonard did not consent to forgoing an appeal of his conviction, and the trial court thus abused its discretion when it denied his motion for an out-of-time appeal. Accordingly, we reverse and remand this case to the trial court for entry of an order granting an out-of-time appeal from the denial of Leonard’s motion to withdraw his guilty plea.

Decided January 16, 2013.

Freddie L. Brown, pro se.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Id. at 809-810. See also Stockton v. State, 298 Ga. App. 84, 86 (679 SE2d 109) (2009).

The same circumstances obtain here. Brown repeatedly attempted to assert his right to appeal as well as his right to appellate counsel. He was entitled to counsel, and nothing in the record shows that the trial court ever responded to his motions or letters seeking the appointment of counsel to pursue his appeal. We must therefore reverse and remand this case for the entry of an order granting Brown an out-of-time appeal.

2. In light of the reversal and remand in Case No. A12A1717, Brown’s remaining assertions of error in Case No. A12A1719 and Case No. A12A1720 are moot.

Judgment reversed and case remanded with direction in Case No. A12A1717.

Appeals dismissed as moot in Case No. A12A1719 and Case No. A12A1720.

Doyle, P. J., and Andrews, P. J., concur.

       In addition to the appeals discussed here, Brown filed pro se appeals in Case No. A11A0518 and Case No. A12A1718.


author: Andrews, Presiding Judge.

text:
    A12A1885.
    BACON COUNTY HOSPITAL & HEALTH SYSTEM et al. v. WHITLEY.
    (737 SE2d 328)
   Andrews, Presiding Judge.

Following our grant of an interlocutory appeal, Bacon County Hospital & Health System, Bacon County Health Services, Inc., Bacon County Rehabilitation Center, Susan Byrd, and Jane Doe (collectively “the Bacon County Defendants”) appeal the trial court’s denial of their motion to dismiss Wanda Whitley’s medical malpractice complaint. The Bacon County defendants contend the trial court erred by denying their motion to dismiss the complaint because the qualifications of Ms. Whitley’s expert did not satisfy the criteria of OCGA § 9-11-9.1 andOCGA § 24-9-67.1 (c). Because we find that the trial court abused its discretion by concluding that a chiropractor was qualified to testify about the standard of care of a physical therapist, we reverse the trial court and remand the case to the trial court with direction to grant the motion and dismiss the complaint.

We usually review a trial court’s order on a motion to dismiss de novo. Akers v. Elsey, 294 Ga. App. 359, 361 (1) (670 SE2d 142) (2008). “But the interplay of OCGA §§ 24-9-67.1 and 9-11-9.1 means that, when the trial court has had [a] hearing... as in this case, our review determines only whether the trial court has abused its discretion.” (Punctuation omitted.) Id.; see also Vaughan v. WellStar Health System, 304 Ga. App. 596, 600-601 (2) (696 SE2d 506) (2010). “The penalty for failure to supply a proper affidavit per OCGA § 9-11-9.1 is dismissal.” Akers v. Elsey, supra, 294 Ga. App. at 361 (1).

Ms. Whitley’s complaint alleges that after she sought treatment at the Bacon County Rehabilitation Center for a severe ankle injury, physical therapists Susan Byrd and Jane Doe administered electrostimulation therapy to her ankle. According to Ms. Whitley’s complaint, the therapy was performed negligently; constituted medical malpractice; and caused pain, disfigurement, and permanent disability. In accordance with OCGA § 9-11-9.1, Ms. Whitley submitted an affidavit from an expert to support her claim. Her expert, Dr. Michael Siefman, a chiropractor licensed in the State of Florida, testified that Ms. Byrd, a physical therapist, deviated from the professional standard of care of physical therapy in administering the electrostimulation therapy to Ms. Whitley.

The Bacon County defendants answered the complaint, denied liability, and asserted that Dr. Siefman’s affidavit failed to satisfy the expert affidavit requirements of OCGA §§ 9-11-9.land 24-9-67.1. Contemporaneously they moved to dismiss the complaint, contending that because Dr. Siefman practices as a chiropractor, rather than a physical therapist, he is not qualified to offer an expert opinion in this case.

Ms. Whitley responded with an amended affidavit from Dr. Siefman that further explained his qualifications and experience. The trial court held a hearing on the applicants’ motion to dismiss. After reviewing the matter, the trial court denied the motion, but issued a certificate of immediate review. This appeal followed.

Pursuant to OCGA § 9-11-9.1 (a), a plaintiff asserting a claim for medical malpractice must “file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Further, to qualify as a competent expert in a medical malpractice case, the expert must satisfy the requirements of OCGA § 24-9-67.1 (c), which sets forth specific criteria governing the qualifications of experts in medical negligence actions. OCGA § 24-9-67.1 (c) provides:

Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
(C) Except as provided in subparagraph (D) of this paragraph:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or
(iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and
(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.

The Bacon County defendants contend that because Dr. Siefman is a chiropractor and not a physical therapist, he does not meet the “same profession” requirement of OCGA § 24-9-67.1 (c) (2) (C) (i) and thus cannot give expert testimony in this case. They rely upon Ball v. Jones, 301 Ga. App. 340, 343 (687 SE2d 625) (2009), in which we found that a nurse cannot give expert testimony against a physical therapist because they practice separate professions, and Postell v. Hankla, 317 Ga. App. 86, 89 (1) (728 SE2d 886) (2012), in which this Court recently held that a medical doctor was not competent to testify about the standard of care in a medical malpractice case involving a nurse midwife. They further note that OCGA § 9-11-9.1 (g) (5) and (17) categorize chiropractors and physical therapists as engaged in different professions. See Ball v. Jones, supra, 301 Ga. App. at 343 (“OCGA § 9-11-9.1 (g) explicitly categorizes nurses and physical therapists as practicing separate professions.”).

Ms. Whitley responds, however, that Florida — the state where Dr. Siefman practices — does not view the two professions separately. In his amended affidavit, Dr. Siefman testified that his Florida chiropractic license authorizes him to practice in the area of physical therapy. Florida law supports this general claim. Under Fla. Stat. § 460.403 (9) (c) 1. a licensed chiropractor may practice physiotherapy, which is “deemed identical and interchangeable” with physical therapy. Fla. Stat. § 486.021 (8). Florida chiropractors may also utilize electronic treatments. See Fla. Stat. § 460.403 (9) (c) 1. Dr. Siefman further testified that, as allowed by his chiropractic license, he has practiced in the area of physical therapy since July 2001, and, within that practice, has treated patients with electrostimulation therapy for at least ten years. Based on this evidence, Ms. Whitley argues that Dr. Siefman practiced in the same profession as the physical therapists named in the suit at the time of the alleged negligence. In effect, Ms. Whitley argues that because Dr. Siefman met the “active practice” requirement found in OCGA § 24-9-67.1 (c) (2) (A), he is competent to testify notwithstanding the requirements of OCGA § 24-9-67.1 (c) (2) (C) (i) that he be of the same profession as the physical therapist in this case.

The trial court apparently determined that, because Dr. Siefman, as a chiropractor, has performed physical therapy treatments for many years, has been trained in physical therapy, and is licensed as a physical therapist in states other than Florida, he is a member of the “same profession” as the defendant physical therapists. We cannot agree.

As this Court recently again explained,

the word “or” connecting subparagraphs (2) (A) and (2) (B), followed by the word “and” connecting subparagraphs (2) (B) and (2) (C), means that “a medical expert must show either ‘active practice’ or ‘teaching’ for ‘at least three of the last five years,’ but that whichever of these may be the case, the expert must also be ‘a member of the same profession’ as the person whose performance he is evaluating.” [Smith v. Harris, 294 Ga. App. 333, 336-337 (1) (670 SE2d 136) (2008) (trial court abused its discretion in allowing pharmacist to testify concerning defendant medical doctor’s violations of physician’s standard of care). Accord Hankla[ v. Jackson, 305 Ga. App. 391, 396 (2) (a) (699 SE2d 610) (2010)] (trial court erred by allowing biomechanical engineer expert to comment, even indirectly, on whether defendant nurse midwife’s actions breached standard of care). See also Ball v. Jones, [supra, 301 Ga. App. at 343] (nurse was not qualified under OCGA § 24-9-67.1 to give expert affidavit regarding standard of care of physical therapist).] If the expert is not a member of the same profession, then the expert must qualify under subparagraph (D) in order to testify against the defendant provider.

(Footnote omitted.) Postell v. Hankla, supra, 317 Ga. App. at 88 (1). Thus, we held that a physician who did not satisfy the criteria of OCGA § 24-9-67.1 (c) (2) (D), was not competent to testify against a nurse midwife because medical doctors are in a separate profession from nurses. OCGA § 9-11-9.1 (g) (11) and (12); Postell v. Hankla, supra, 317 Ga. App. at 89.

Decided January 16, 2013

Moreover, even under Florida law chiropractic medicine and physical therapy are not the same professions. Although the occupations clearly have some overlap in activities, they are defined differently, are governed by different regulatory boards, and are subject to different licensing requirements. Compare Fla. Stat. § 460.403 et seq. (statutory provisions governing chiropractic medicine) and Fla. Stat. § 486.021 et seq. (statutory provisions governing the practice of physical therapy). In other words, a chiropractor is not a physical therapist. Fla. Stat. § 486.021 (5) (“ ‘Physical therapist’ means a person who is licensed and who practices physical therapy in accordance with the provisions of this chapter [governing physical therapy practice]”); Fla. Stat. § 460.403 (5) (“ ‘Chiropractic physician’ means any person licensed to practice chiropractic medicine pursuant to this chapter.”).

Thus, the fact remains that at the time of the alleged negligence, Dr. Siefman practiced as a Florida chiropractor, not a physical therapist. And despite certain overlap between the professions, both Georgia and Florida categorize chiropractic medicine and physical therapy differently. Compare OCGA § 43-9-1 et seq., regulating the practice of chiropractic, with OCGA § 43-33-1 et seq., regulating the practice of physical therapy.

We cannot ignore the clear statutory requirements for expert witness qualifications in medical malpractice cases. Except in the limited circumstance where the expert is a physician and, who, as a result of specified experience in supervising, teaching, or instructing other health care professionals, has knowledge of the standard of care of that health care provider under the circumstances at issue is competent to testify as to the standard of that health care provider, experts must be of the same profession. See OCGA § 24-9-67.1 (c) (2) (D). As Dr. Siefman does not qualify under OCGA § 24-9-67.1 (c) (2) (D) and is not licensed in Florida as a physical therapist, he does not meet this requirement, and the trial court abused its discretion in finding that he did. Because Ms. Whitley was required to file a proper affidavit in order to pursue her professional malpractice claim against the Bacon County defendants, the trial court erred in failing to grant their motion to dismiss her claim.

Accordingly, the ruling of the trial court must be reversed and the case remanded to the trial court with direction to dismiss Ms. Whitley’s complaint.

Judgment reversed and case remanded with direction.

Doyle, P. J., and Boggs, J., concur.

Hall, Booth, Smith & Slover, Norman D. Lovein, Steven P. Bristol, for appellants.

Janna M. Blasingame, Jack J. Helms, Jr., for appellee.

       The complaint alleged that Byrd and Doe were negligent and that the other defendants were liable under the theory of respondeat superior.

       Dr. Siefman is a licensed physical therapist in Colorado and Indiana, but he apparently has not practiced in those states sufficient to meet the requirements of OCGA § 24-9-67.1 (c) (2) (A).


author: PHIPPS, Presiding Judge.

text:
    A12A2388.
    COGHLAN v. THE STATE.
    (737 SE2d 332)
   PHIPPS, Presiding Judge.

Donna J. Coghlan was charged with driving under the influence (DUI), driving on the wrong side of the road, and reckless driving. At trial, the court directed a verdict of acquittal on the charge of driving on the wrong side of the road, and the jury found Coghlan not guilty of reckless driving, but guilty of DUI. In this appeal from her DUI conviction, Coghlan challenges the sufficiency of the evidence, argues that the trial court erred by allowing certain remarks during the state’s closing argument, and asserts that her sentence was the result of unconstitutional vindictiveness. We affirm.

1. Where, as here, the appellant challenges the sufficiency of the evidence to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

The only witnesses who testified at the trial were two police officers called by the state. Their testimony showed the following. At about 2:00 a.m. on September 16, 2006, a uniformed patrol officer in a marked police cruiser observed a vehicle being driven on the wrong side of the road. The officer initiated a traffic stop of the vehicle, and approached the driver, Coghlan, who was alone in the vehicle. Upon asking Coghlan for her driver’s license, the officer detected a “heavy odor of alcoholic beverage coming out of her person.” The officer told Coghlan to shut off the engine and to remain seated in her vehicle while he stepped away. Coghlan turned off the engine, and the officer walked back to his patrol cruiser, then summoned an officer who specialized in DUI investigation. But about two minutes later, Coghlan started her vehicle engine and drove away. With the lights and siren on his police cruiser activated, the officer pursued Coghlan. Coghlan stopped a few blocks down the road, and the officer walked to Coghlan. Within moments, a law enforcement officer assigned to a DUI task force responded to the scene and took over the roadside investigation.

As the responding officer walked to the driver’s side of Coghlan’s vehicle, he began “smelling a strong odor of alcoholic beverage coming from the car and [Coghlan was] the only person in the car.” The officer asked Coghlan to exit the vehicle. That officer recalled at trial, “It seemed like she stumbled out of the car and was very unsteady on her feet.” Once Coghlan was out of her vehicle, the officer noticed an odor of alcoholic beverage that was “[v]ery strong coming from her breath.” The officer further described Coghlan’s speech: “It was slow. It was slurred. There were times I didn’t understand what she was saying. Not that I didn’t understand because I didn’t understand the words, it was just she would ramble on about different things that, you know, I wasn’t asking.” For example, the officer elaborated at trial, when he asked Coghlan whether she thought she should be driving, she answered something to the effect, “I don’t know ..., but I don’t want to impair myself,” which the officer discerned “makes no sense.” As another example, the officer described that Coghlan wanted to know why the police were following her. According to the officer, “nobody was following her. She didn’t quite understand that she was stopped for an infraction by another officer and because she left the [initial] scene, the officer had no choice but to go after her and stop her.” The officer asked Coghlan whether she was willing to submit to field sobriety tests; she initially said no, next asked the officer for advice, then wavered in her answer. The officer asked Coghlan why she had consumed alcoholic beverages and then driven a vehicle. She responded: “That’s a good question.”

Additionally, the officer recounted at trial that he had further observed Coghlan at the scene — her gait was unsteady, and her eyes were bloodshot and watery. Coghlan admitted to the officer having had “a little bit” to drink, later claiming to the officer that she had consumed two glasses of wine, both about eight or nine hours before she was stopped.

After testifying about his DUI training and his experience in patrolling a bar district where he routinely encountered intoxicated individuals, the officer testified that, based on his training and experience, along with his observations of Coghlan’s speech, actions, and demeanor and his detection of the odor of alcoholic beverage on her breath, he had formed the opinion that Coghlan was under the influence of alcohol to the extent that she was a less safe driver.

The officer arrested Coghlan for DUI less safe, then read her the Georgia Implied Consent Notice. Coghlan stated that she would submit to a state-administered chemical test of her breath. But, the officer testified, when he instructed Coghlan to blow into a particular part of the Intoxilyzer 5000 machine, “[Coghlan] wouldn’t put any air into the instrument at all.” Consequently, the testing instrument could not provide any proper reading, and the “results” of the breath test were deemed: “refused.” The state also presented at trial a redacted recording of Coghlan’s encounter with the DUI task force officer who was summoned to the scene.

On appeal, Coghlan contends that the evidence was insufficient because the state adduced no evidence of field sobriety test results, nor any actual results of a test performed upon her blood, breath, or urine. There is no merit in her contention.

Methods of proof to show impairment may include evidence of (i) erratic driving behavior, (ii) refusal to [submit to state-administered chemical testing], and (iii) the officer’s own observations (such as smelling alcohol and observing strange behavior) and resulting opinion that the alcohol made it less safe for the defendant to drive. Here the State used all three methods.

When the police officer initially stopped Coghlan, collected her license, and told her to turn off the vehicle engine and remain seated at the scene, Coghlan drove away — leaving behind both the officer and her driver’s license. When she was stopped by police soon thereafter and ordered to exit her vehicle, she stumbled out of it and thereafter was unsteady on her feet. Her eyes were bloodshot and watery. Her speech was slow and slurred. Her breath emitted a very strong odor of alcoholic beverage. She admitted having consumed alcoholic beverages earlier that evening. And instead of giving specific, coherent answers to several police questions, she “rambled on about different things.” The officer who was assigned to a DUI task force formed the opinion that Coghlan was under the influence of alcohol to the extent that it was less safe for her to drive. Moreover, the evidence authorized the jury to find that Coghlan had refused to submit to a chemical test of her bodily substance (breath). Despite the lack of any evidence of field sobriety evaluations, the state’s evidence of Coghlan’s conduct and manifestations, as observed and recounted by the two law enforcement officers who encountered her at the time in question, suffices to sustain her DUI conviction.

2. Coghlan contends that the trial court erred by permitting the prosecutor to make certain remarks, citing three portions of the state’s closing argument.

(a) In one portion, Coghlan asserts, the state impermissibly disparaged defense counsel by stating that her attorney — who moments prior had delivered closing argument on her behalf — had employed a “smoke and mirrors” strategy. “Closing arguments are judged in the context in which they are made.”

The transcript shows that, at the beginning of the state’s closing argument, the prosecutor revealed that, earlier in his legal career, he had “[done] some criminal defense work. And by doing that work I found myself sometimes not addressing certain issues.” There were occasions, the prosecutor continued, when there was “a little smoke in the room; the more smoke that came in the room, the better for me. But what I want to do today is I want to just be this big ceiling fan and just suck out some of the smoke that’s in this room today.” The prosecutor next reminded the jurors of the testimony given by the officer who stopped Coghlan:

[That officer] said the reason he stopped her was because she was driving on the wrong side of the street and he asked for a license and insurance and went back to his car, you know, told her to wait, told the Defendant to wait, and went back to his car to verify the information. Now, this is the part where as a defense attorney, that’s a very important part that I often overlooked. You see, [the defense attorney] in his closing, he did not mention the Defendant driving off while [that officer] had her license and her insurance. He told her not to go anywhere. He didn’t mention that [the officer] had put on his lights as well as his siren to pull the Defendant over. That’s sort of the smoke and mirror stand. Not only did [the officer] pull the Defendant over for driving on the wrong side of the road —

Defense counsel interposed,

Your Honor, I’m going to object to that because, again, she’s not charged with leaving the scene or eluding, that was misstating the evidence. That’s not what she’s charged with. The smoking mirror is an improper inference because it castigates bad intent on the defense for no reason in this case. That’s part of the evidence that he can’t use that type of analogy and make a personal attack on defense counsel.

The trial court ruled, “I don’t think his comments — I think they purport with the evidence, even though it may or may not have been charged. I think it’s permissible for him to draw attention to it.”

On appeal, Coghlan maintains that the prosecutor’s comments were not related to any evidence or lack of evidence, but were instead impermissible comments by the prosecutor against defense attorneys in general, as well as her trial attorney, specifically.

Without question, “counsel should adhere to the highest standards of professionalism and proper courtroom decorum,” and “we do not condone any argument that unnecessarily impugns the integrity of opposing counsel, even if obliquely.”* However, “[i]t is well settled that counsel is permitted wide latitude in closing argument, and any limitation of argument is a matter for the court’s discretion.” Here, the state presented evidence that Coghlan fled a traffic stop, leaving behind her driving license, and the trial court correctly reasoned that said evidence was admissible in proving a DUI charge. The transcript shows that the prosecutor used the complained-of metaphor to argue that the defendant had not rebutted or explained the state’s evidence. Having considered the “smoke and mirrors” characterization of the defense employed, within the context in which it was used, we are constrained to find no reversible error.

(b) With respect to the two remaining portions of the closing argument of which Coghlan complains, Coghlan failed to lodge any objections thereto, and consequently, failed to preserve those issues for purposes of appeal. And even had Coghlan objected thereto, no reprieve would have been due her as the cited remarks did not exceed the wide latitude afforded counsel during closing argument.

(i) Coghlan complains that the prosecutor said the following:

The Defendant made a choice and that choice was to get behind the wheel... putting not only her life in danger, but the life of any other citizen who was on the roads traveling or walking in danger also. And I ask that you deliver a guilty of — a verdict of guilty sending the message of relating to take responsibility just like thousands of other people have taken the responsibility for the charge. I ask that you find her guilty of DUI less safe, and by way of reckless driving, driving under the influence, wrong side of the road September 16, 2006. Thank you.

According to Coghlan, these remarks violated the prohibition against making golden rule arguments, because they implied that the jurors (as “citizen[s]”) were potential victims in this case.

Though it is improper for the state to make a golden rule argument, one that asks the jurors to place themselves in a victim’s position,

it is not improper for the state to appeal to the jury to convict for the safety of the community or to curb an epidemic of violence in the community. Nor is it improper for the prosecutor to emphasize to the jury its responsibility to enforce the law. The state’s argument in this case was not improper.

(ii) Coghlan asserts that the prosecutor improperly injected his personal opinion into the state’s closing argument when he made the statement: “I think [the officer who stopped Coghlan] did the responsible thing by calling [a DUI task force officer] out to the scene to do a further investigation.” Coghlan relies on the principle that it is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness. Coghlan’s assertion and reliance upon said principle are unavailing.

Despite the prosecutor’s phraseology, the statement is most reasonably seen as an attempt to draw an inference from the evidence. “Inferences drawn from facts adduced at trial are acceptable argument, and the fact that the inferences may have been improperly couched in the framework of a personal opinion does not render them reversible error.” The transcript shows that the statement flagged by Coghlan was made after the prosecutor had recited the circumstances faced by the patrol officer who called for an officer specially trained in DUI investigation, and after the prosecutor had next contrasted the work experiences of the patrol officer and the DUI task force officer. Additional review of the transcript supports the conclusion that the flagged statement was responsive to the defense claim that the state’s case hinged on mere opinion evidence that failed to meet the reasonable doubt burden of proof. Given the foregoing, the prosecutor’s statement with which Coghlan takes issue did not exceed the wide latitude afforded to counsel since it was fairly “the conclusion the prosecutor wished the jury to draw from the evidence, and not a statement of the prosecutor’s personal belief as to the veracity of a witness.”

3. Citing language of the Sixth Amendment, as well as of the Georgia Constitution, Coghlan charges the trial court with impermissibly punishing her by imposing an enhanced sentence. According to Coghlan, “[t]he trial court clearly punished [her] for having gone to trial. The trial court virtually admitted enhancing the sentence for that reason during sentencing.”

Notably, in contradiction of Court of Appeals Rule 25, Coghlan has provided not a single citation to the record in support of her charge. “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” While “[i]t is not this Court’s role to cull the record on a party’s behalf,” “we will exercise our discretion and resolve this [issue] on its merits.”

The applicable sentencing provision, OCGA § 40-6-391 (c) (1) (B), states in pertinent part: “Every person convicted of violating this Code section shall, upon a first . . . conviction ... be punished as follows: A period of imprisonment of not fewer than ten days nor more than 12 months, which period of imprisonment may, at the sole discretion of the judge, be suspended, stayed, or probated. . . .”

Although, before trial, the state apparently offered Coghlan a plea deal that provided for a 12-month sentence, with credit for time served and the balance probated, Coghlan rejected it. At the sentencing hearing, the state asked the trial court to impose upon her a 12-month sentence with 45 days to serve.

Coghlan’s attorney asserted that Coghlan had “no prior history”; further, he told the court that, after Coghlan discussed the underlying facts with him, he had suggested that she take certain steps “to make sure she didn’t have a problem.” The attorney stated that Coghlan had thereafter, for example, volunteered 100 hours of community service, attended a two-hour “MADD Victim Impact Panel,” and “[gone] in for alcohol screening all the way back in January of ’07 and followed the recommendation, which was to complete Risk Reduction.” Thus, Coghlan’s lawyer proposed, “I would ask the Court not to punish her. She spent a night in jail the night of this arrest and she has complied with everything I’ve asked her to do, evaluation, community service, everything.” ■

Decided January 16, 2013.

Head, Thomas, Webb & Willis, William C. Head, Ashleigh B. Merchant, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

The final disposition order in this case shows that Coghlan was sentenced to twelve months, probated after service of two days, with credit for time served of one day. The record, including the transcript of the sentencing hearing, convinces us that the trial court permissibly exercised its discretion in sentencing Coghlan based on the evidence adduced against her. We discern no merit in Coghlan’s vague charge that the sentence imposed upon her was the result of unconstitutional vindictiveness.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See OCGA§ 40-5-67.1.

       Coghlan’s lawyer acknowledged at trial that “[Coghlan] didn’t take the test.”

        Duncan v. State, 305 Ga. App. 268, 270 (1) (699 SE2d 341) (2010) (footnote omitted).

        Davis v. State, 301 Ga. App. 484,487 (1) (687 SE2d 854) (2009) (“Apolice officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether he was under the influence to the extent it made him less safe to drive.”) (punctuation omitted).

       See State v. Collier, 279 Ga. 316, 317 (612 SE2d 281) (2005) (“Under the implied consent law, the consequences of refusing the requested testing [include] the possibility of admission of such refusal at a criminal trial”) (citation omitted).

       The trial court granted Coghlan’s motion in limine to exclude evidence of the sobriety evaluations.

       See OCGA § 40-6-391 (a) (1) (“A person shall not drive or be 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[.]”); Korponai v. State, 314 Ga. App. 710, 710-711 (1) (725 SE2d 832) (2012) (concluding evidence was sufficient to sustain DUI less safe conviction, despite lack of evidence of field sobriety tests, where defendant was at an accident scene, smelled strongly of alcohol, had slurred speech, was staggering, and refused an alco-sensor breath test and an Intoxilyzer breath test, and where state introduced defendant’s prior DUI conviction); Morgan v. State, 181 Ga. App. 150, 151 (351 SE2d 497) (1986) (determining that the evidence of DUI less safe conviction was “overwhelmingfly]” sufficient, despite lack of evidence of field sobriety tests, where officers observed defendant drive into a ditch while attempting to enter a driveway, defendant fell into the ditch while exiting the car, defendant had a strong odor of alcohol on him and he could not stand alone, his eyes were bloodshot, and his speech was so slurred he could hardly be understood when he spoke). Cf. Hughes v. State, 290 Ga. App. 475, 477 (1) (b) (659 SE2d 844) (2008) (concluding that evidence was insufficient to sustain DUI of drugs to the extent defendant was less safe to drive; although officer testified he smelled marijuana in defendant’s truck, defendant was not alone in truck, passenger fled area before police arrived, officer offered no testimony that defendant smelled of marijuana or exhibited physical signs of intoxication, officer did not conduct any field sobriety tests or chemical testing to determine whether defendant was intoxicated, and there was no evidence that defendant had ingested or was under the influence of marijuana when truck struck child on residential street).

        Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008) (citation omitted).

        Gissendaner v. State, 272 Ga. 704, 713 (10) (a) (532 SE2d 677) (2000) (citations omitted).

        Warren v. State, 314 Ga. App. 477, 481 (2) (d) (724 SE2d 404) (2012), citing Gissendaner, supra.

        Davis v. State, 290 Ga. 757, 759 (3) (725 SE2d 280) (2012) (citation and punctuation omitted).

       See Duncan, supra (“In determining whether a driver is impaired by alcohol or other substances, the manner of his driving may be considered as a factor if there is evidence that he has consumed alcohol or drugs.”); Walczak v. State, 259 Ga. App. 140, 143-144 (2) (575 SE2d 906) (2003) (“Evidence as to the manner of driving may be taken into account where there is evidence that the defendant is DUI for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done.”) (punctuation and footnote omitted).

        See Arrington v. State, 286 Ga. 335, 346 (16) (c) (687 SE2d 438) (2009) (“Aprosecutor may argue that the defendant has not rebutted or explained the State’s evidence.”) (citations omitted); Pye v. State, 269 Ga. 779, 788 (19) (505 SE2d 4) (1998) (“The State is allowed considerable latitude in imagery and illustration in making its argument.”) (citation omitted).

       See Banks v. State, 281 Ga. 678, 682-683 (5) (642 SE2d 679) (2007) (noting that counsel is permitted wide latitude in closing argument and thus finding no reversible error, where prosecutor characterized defense theory as commonly used and known as “the whore defense,” which was “designed to play on prejudices” that the jurors may have, where defense objected on the ground that such argument attacked him “personally and accused him of trickery, and where the court responded that there would be no inferences or aspersions cast on defense counsel); Gissendaner, supra at 712-713 (10) (a) (citing principle that the permissible range of argument during final summation is “very wide” and thus finding that no reversible error occurred, where prosecutor stated early in his argument that “[wjhat you just heard from defense counsel has done a tremendous violence to the truth in this case,” then suggested that defense counsel’s argument had failed to comport with the evidence, and further referred to defense counsel’s argument as “an insult to the truth”) (punctuation omitted); see generally Adams, supra at 303 (3) (f) (finding that the prosecutor’s argument fell within the wide latitude afforded, where cited portion “did not put forth any facts not in evidence, or inform the jury that facts existed in [the] case outside the record,” rather, the prosecutor “was explaining to the jury his regular practice”).

        Johnson v. State, 288 Ga. 803, 808 (5) (708 SE2d 331) (2011) (holding that failure to object to comments made during closing argument waived issue, and further declining to review issue under “plain error” analysis); Moore v. State, 288 Ga. 187, 191 (3) (702 SE2d 176) (2010) (concluding that whether the state made improper comments during closing argument was not preserved for appeal, where the defendant failed to object to the prosecutor’s closing argument at the time).

        Braithwaite v. State, 275 Ga. 884, 885 (2) (b) (572 SE2d 612) (2002).

        Clark v. State, 285 Ga. App. 182, 184 (2) (645 SE2d 671) (2007) (footnotes omitted); see Gibson v. State, 283 Ga. 377, 381 (8) (659 SE2d 372) (2008) (finding it appropriate for prosecutors to urge the jury to speak on behalf of the community and rid it of robbers and murderers); Laney v. State, 271 Ga. 194, 198 (10) (515 SE2d 610) (1999) (finding statement “this is your community” acceptable); McClain v. State, 267 Ga. 378, 385 (4) (a) (477 SE2d 814) (1996) (“A prosecutor may appeal to the jury to convict for the safety of the community or to send a message to others that criminal activities will be punished.”); Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993) (holding that it is not improper for a prosecutor to appeal to the jury to convict for the safety of the community or to convict so as to send a message to others that criminal activities will not go unpunished; the state may argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard).

       Adams, supra at 302 (3) (e).

       See McClain, supra at 384 (3) (b) (2) (concluding that, despite phraseology, prosecutor’s comments —• “[I]f that’s not malice murder I don’t know what is. The evidence of malice is as tight as a tick on a dog.” ■— can most reasonably be seen as an attempt to draw inferences from evidence); Carr v. State, 267 Ga. 547, 556 (7) (b) (480 SE2d 583) (1997) (determining that, although prosecutor prefaced portions of his argument with phrases such as “I have no doubt,” “I think,” and “I don’t believe,” when considered in context, the most reasonable interpretation of those comments was that the prosecutor was asking the jurors to draw inferences from the evidence).

        Carr, supra (citation omitted).

       See McClain, supra (noting that the comment flagged by the appellant “was made after the prosecutor outlined the evidence showing [appellant’s] intent, and the remarks were clearly responsive to [appellant’s) argument that the state failed to prove malice”).

        Adams, supra (finding that the prosecutor’s statements — “I suggest to you that everything Derrick Peters told you was credible” and that another witness “told you the truth” •— were permissible as conclusions the prosecutor wished the jury to draw from evidence); see Carr, supra; McClain, supra.

       Specifically, Coghlan cites language of the Sixth Amendment that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ..”

       Specifically, Coghlan cites language of Ga. Const. Article I, Section I, Paragraph XI that “[i]n criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.”

       See Court of Appeals Rule 25 (c) (providing that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript”).

       See generally Prine v. State, 237 Ga. App. 679, 680 (1), n. 1 (515 SE2d 425) (1999) (reiterating that the burden is on the appellant to show error by the record).

        Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996) (citation omitted).

        Walker v. State, 280 Ga. App. 393, 395 (2), n. 5 (634 SE2d 177) (2006) (citation and punctuation omitted).

        Chastain v. State, 237 Ga. App. 640 (516 SE2d 362) (1999).

       See Richardson v. State, 305 Ga. App. 363, 368 (5) (699 SE2d 595) (2010) (recognizing that “a trial court does not engage in unconstitutional vindictiveness by imposing a harsher sentence following a jury trial than may have been imposed if the defendant had accepted a plea bargain,” and noting that “entry of a guilty plea may constitute a sentencing consideration warranting leniency”) (citations and punctuation omitted).


text:
    A12A1887, A12A1888.
    AGAN v. THE STATE (two cases).
    (737 SE2d 347)
   Boggs, Judge.

In these consolidated cases, Gregory Agan appeals from his conviction of one count of statutory rape (Count 8), contending the trial court gave an erroneous jury charge. While he does not assert any error with regard to his remaining convictions for three counts of aggravated sodomy, four counts of aggravated child molestation, and three counts of child molestation involving three victims,* he contends in a second enumeration of error that his sentence on one count of child molestation should be vacated because it was merged into his statutory rape conviction. The State laudably concedes that both of these claimed errors have merit. Based upon our review of the record and the trial court’s charge, we agree and reverse Agan’s statutory rape conviction, vacate his sentence for child molestation (Count 7 in Case No. 10CR00912), and remand for resentencing.

1. The record shows that the trial court instructed the jury as follows:

And I’m going to start with statutory rape. It’s just the first one in the book.
A person commits the offense of rape when he has carnal knowledge of a female under the age of 10. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ. Insofar as the charge is concerned in this case, the State must prove beyond a reasonable doubt that the alleged victim was under the age of 10.

At the conclusion of the charge, defense counsel informed the trial court, “I think we both have an exception to the charge.” Counsel for the State then asserted, “In charging on statutory rape, you gave the rape charge” and the correct charge “includes indication of slight penetration and corroboration.” The trial court disagreed, stating, “There’s no difference now in the charge of statutory rape and rape under a particular age ... [bjecause it takes the element of force out of that.” The trial court decided, however, that it should have charged the jury on statutory rape under the age of 16 instead of statutory rape under the age of 10. It then recalled the jury, informed them that it should have charged them “under the age of 16,” and advised that “[t]he rest of the definition is accurate” with regard to statutory rape. Neither the State nor defense counsel made any objection to the trial court’s recharge; the trial court did not solicit any additional objections or exceptions to the charge.

OCGA § 16-6-3 (a) provides: “A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse, provided that no conviction shall be had for this offense on the unsupported testimony of the victim.” (Emphasis supplied.)

[T]he quantum of corroboration needed in a statutory rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.

(Citations and punctuation omitted; emphasis supplied.) Williamson v. State, 315 Ga. App. 421, 424 (1) (b) (727 SE2d 211) (2012).

In Whited v. State, 173 Ga. App. 435 (326 SE2d 803) (1985), we reversed the defendant’s statutory rape conviction based upon the trial court’s failure to charge the jury “that it may not render a guilty verdict without determining that evidence corroborating the victim’s testimony was presented.” Id. at 436 (3). Notably, we reversed the conviction even though we concluded that the evidence before the jury presented sufficient evidence of corroboration. Id. at 435 (1). Although not expressly stated in our opinion, we presumably concluded that the failure to charge on corroboration was harmful as a matter of law. See Chase v. State, 277 Ga. 636, 639 (2) (592 SE2d 656) (2004) (“[w]hen a given instruction ‘fails to provide the jury with the proper guidelines for determining guilt or innocence, it is clearly harmful and erroneous as a matter of law’ [Cit.]”).

Because defense counsel failed to object to the trial court’s recharge after his initial objection and did not object to the trial court’s conclusion that it had given the proper instruction based upon its charge book, we must apply a plain error analysis. See State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011); OCGA § 17-8-58 (b). In Kelly, the Supreme Court of Georgia held that each of the following four prongs must exist to demonstrate plain error:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, [] by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Decided January 17, 2013.

Robert M. Patten, David J. Dunn, Jr., for appellant.

Leigh E. Patterson, District Attorney, Finnis K. Salmon, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Id. at 33 (2) (a). In this case, all four prongs are present: the trial court’s charge was erroneous; the error is clear and obvious; it affected Agan’s substantial right to a charge that provided the jury with the proper guideline for determining his guilt or innocence; and failing to remedy this error would seriously affect the fairness, integrity, or public reputation of judicial proceedings. Cf. Cheddersingh v. State, 290 Ga. 680, 686 (2) (724 SE2d 366) (2012) (reversing murder conviction based upon plain error in verdict form regarding presumption of innocence).

We therefore reverse Agan’s conviction for statutory rape, vacate his sentence for child molestation (Count 7 in Case No. 10CR00912), and remand for resentencing on Count 7. The sentence must be vacated on Count 7 because the trial court merged it into the statutory rape sentence. See Muir v. State, 248 Ga. App. 49, 52 (1) (b) (545 SE2d 176) (2001) (vacating sentence for conviction that trial court merged into separate offense reversed on appeal due to erroneous jury charge).

2. Agan’s remaining enumeration regarding his sentence for statutory rape is rendered moot by our holding in Division 1.

Judgments reversed in part and vacated in part, and case remanded in part with direction.

Doyle, P. J., and Andrews, P. J., concur.

       The trial court granted the State’s motion to join Floyd County Superior Court Case No. 10CR00912 with Floyd County Superior Court Case No. 11CR01142 for trial. One case involved two victims and the other case involved a third victim.

       The trial court apparently reached this conclusion based upon a jury charge book which we cannot identify from the record before us. We note that both the third and fourth editions of the Suggested Pattern Jury Instructions for criminal cases prepared by the Council of Superior Court Judges contain a charge on statutory rape that instructs the jury about the requirement of corroboration. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.36.11 (4th ed. 2007); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.20.il (3rd ed. 2003).

       As in Cheddersingh v. State, 290 Ga. 680, 681 (2) (724 SE2d 366) (2012), the exchange between the trial court and defense counsel in this case does not show that Agan “intentionally relinquished his right” to a proper charge on statutory rape. (Emphasis in original.) Id. at 684. His objection was therefore not “affirmatively waived” under Kelly, supra. Id.

       Because sufficient evidence supports Agan’s statutory rape conviction, he maybe retried. See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992); Craft v. State, 309 Ga. App. 698, 698-699 (710 SE2d 891) (2011).


text:
    A12A1996.
    FLOYD v. THE STATE.
    (737 SE2d 341)
   Boggs, Judge.

William Floyd appeals, contending in his sole enumeration of error that insufficient evidence supports his burglary conviction. We disagree and affirm.

When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that when a landlord entered a rental home from which he had recently evicted tenants, he observed that the water heater in the utility room was in good order. He removed locks from the doors and drove to a nearby home supply store to purchase replacements. Approximately 20-25 minutes later, he received a telephone call from a person who lived near the rental home informing him that a white or beige Tahoe was parked in its driveway. Within 15 minutes of receiving this telephone call, the landlord returned to the rental home and parked his truck behind the Tahoe in the driveway.

When the landlord entered the home, he noticed that the attic stairway was pulled down and called, “You guys have been evicted. Come on down. Get out of here.” While he was looking up in the attic, Holly Gregory appeared in the hallway behind him, waving her arms. When he informed her that she should not be in the home, Gregory explained “our friend said we could come get some stuff out of the house.” The landlord informed her that nothing remained in the house because it was in a pile beside the street.

As Gregory was waving her hands and talking, the landlord “saw from the side a figure with a red handle . . . scurrying out the back door.” Fearing for his safety, he immediately left the home through the carport door, followed by the woman. While he was standing at the front of his truck, the man came “around the side of the house to where this woman was.” He was no longer carrying the red-handled object. After telling them that “they had no business there,” the landlord called 911 and gave the dispatcher a detailed description of the man and woman, as well as the Tahoe and its tag number. While the landlord was on the telephone with 911, the man and woman jumped in the Tahoe and drove “through the yard and out, not even on the driveway, just to get out of there.”

A few minutes later, a police officer arrived. When the name Holly Gregory came up in a conversation between the landlord and a third party, the officer decided to drive to her father’s house because he knew her from high school. When he arrived, he encountered Gregory and Floyd outside near a white SUV, placed them in handcuffs, and advised them of their Miranda rights. Both claimed that they had gone to the rental home to retrieve a refrigerator and a television for the former tenants. The police officer testified that the Tahoe was filled with too much junk and trash to move a refrigerator.

A search of the rental home revealed that the following damage had been done to the water heater during the time the landlord left for the home repair store: the top of the water heater had been cut off; pipes leading from the top of the water heater had been cut off; and hot water supply pipes in the wall had been torn out and cut off. Additionally, a red-handled bolt cutter was found behind bushes located near the door used by Floyd to exit the house.

The landlord identified Floyd as the man he encountered in the rental home both before and during trial. Following her guilty plea to burglary, Gregory testified at trial on behalf of the State. During her testimony, she was impeached with her prior statements that Floyd had gone into the home looking for copper wire and that he had cut copper wires in the home. She testified that she was friends with the tenants who had been evicted and admitted that she knew they were no longer allowed on the property at the time she and Floyd encountered the landlord. She denied that she and Floyd entered the house before encountering the landlord, claiming instead that they were in the back yard to retrieve a refrigerator. Both Gregory and the landlord testified that the landlord had not given Gregory and Floyd permission to enter the house that day.

Floyd contends that this evidence is insufficient to sustain his burglary conviction because the State presented insufficient evidence that (1) he entered the home without authority, and (2) he intended to commit theft. “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.” Former OCGA § 16-7-1 (a).

We conclude that the State presented sufficient evidence that Floyd entered the home without authority. The landlord testified that the tenants had been evicted, that all of their belongings had already been removed from inside the home, and that he had not given permission for Gregory and Floyd to enter the home. Floyd’s claim on appeal that he was operating under a mistake of fact with regard to his authority to enter the home is not supported by the record. OCGA § 16-3-5 provides: “Aperson shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” When asked at trial about what she told Floyd about the reasons for needing his help, Gregory replied, “I believe I said that [the tenants] had gotten evicted and that I needed to pick some stuff up. The sheriff had come and she was no longer allowed to be on the property, so she asked me to pick up some stuff.” This statement, if true, did not provide Floyd with legal authority to enter the home. See Zabain u. State, 315 Ga. App. 749, 751 (2) (728 SE2d 273) (2012) (“ Without authority’ means without legal right or privilege or without permission of a person legally entitled to withhold the right.”). Gregory did not have the legal right or privilege to grant permission for Floyd to enter the landlord’s property based upon the request of an evicted tenant no longer allowed on the property.

The State also presented sufficient evidence of Floyd’s intent to commit theft.

Whether the defendant entertained an intent to commit a theft after entering is a matter for the jury to say, under the facts and circumstances proved. As a general rule the state must, of necessity, rely on circumstantial evidence in proving intent. And the fact that the defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper.

(Citation and punctuation omitted.) Nelson v. State, 277 Ga. App. 92, 95 (1) (a) (625 SE2d 465) (2005). In this case, the following evidence sufficiently supports the conclusion that Floyd intended to commit theft: the water heater and pipes were damaged less than an hour before the landlord saw Floyd exit the rental home through a back door while carrying an object with a red handle; Floyd was not carrying the red-handled object when the landlord saw him come around the side of the house; a red-handled bolt cutter was found underneath bushes near the door where Floyd exited the home; there were no personal possessions of the former tenants located inside the home; Gregory and Floyd fled when the landlord called 911; and Gregory told the police that she and Floyd had gone to the home looking for copper wire and that Floyd had cut wire in the home. See Snow v. State, 318 Ga. App. 131, 131-133 (1) (733 SE2d 428) (2012); Wilcox v. State, 310 Ga. App. 382, 384-385 (713 SE2d 468) (2011).

Decided January 17, 2013.

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.

Because the State presented sufficient evidence to support Floyd’s burglary conviction, we affirm.

Judgment affirmed.

Doyle, P. J., and Andrews, P. J., concur.