author: Peterson, Judge.

text:
    A15A1914.
    POWELL v. THE STATE.
    (782 SE2d 468)
   Peterson, Judge.

David Powell, convicted of two counts of child molestation, appeals from the denial of his motion for a new trial. He argues that (1) the evidence was insufficient to convict him and (2) the trial court erred by allowing the State to introduce irrelevant testimony that improperly bolstered the victim’s testimony. Because there was sufficient evidence to authorize the guilty verdict on all counts, and because Powell failed to preserve his bolstering objection for appeal, and, in any event, the challenged testimony did not constitute an opinion on the victim’s veracity, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict and no longer presume the defendant is innocent. Wallace v. State, 294 Ga. App. 159, 159 (1) (669 SE2d 400) (2008). So viewed, the evidence shows that Powell was a family friend, affectionately dubbed “Uncle Dave,” who regularly visited the victim’s home and assisted her mother with various household repairs. In December 2010, when the victim was 12 years old, Powell assisted her mother with installing window fixtures. According to the victim’s forensic interview, when her mother left for an errand, Powell came into the victim’s room, removed her pants and underwear, and rubbed his penis against her genitals. Powell stopped when the victim’s mother returned home. On another occasion in April 2011, when the victim was 13 years old, Powell forced her to touch his penis and masturbate him during a drive to school, and also masturbated in her presence and ejaculated into a towel in his vehicle. Some time afterward, the victim’s mother became concerned about her child’s behavior and asked the victim if anything was bothering her. The victim recounted the details of the molestation by Powell to her mother, who then called police. A forensic investigator interviewed the victim, and a video recording of the interview was played for the jury. Both the victim’s mother and the forensic investigator confirmed that the victim related these same facts to them.

1. Powell contends that the evidence established at the trial court was conflicting, and that there is insufficient evidence to sustain the conviction. We disagree.

“When a criminal defendant challenges the sufficiency of the evidence supporting his or her 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.’ ” Strong v. State, 265 Ga. App. 257, 258 (593 SE2d 719) (2004) (citing Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 LE2d 560) (1979)). “The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from the evidence.” Id. “ ‘As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ ” Id. (citation omitted); see also Anderson v. State, 253 Ga. App. 129, 130 (558 SE2d 459) (2001).

OCGA § 16-6-4 provides that a person commits the offense of child molestation when that person “does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]”

Powell alleges the victim’s testimony was contradicted by his own statements to law enforcement and other unspecified evidence, and that law enforcement never searched Powell’s vehicle for the towel into which the victim claimed Powell ejaculated. Here, the jury heard the victim’s statements describing Powell’s acts. While Powell argues that the victim’s statements were not corroborated, Georgia law does not require corroboration of a child molestation victim’s testimony. See Scales v. State, 171 Ga. App. 924, 924-25 (2) (321 SE2d 764) (1984) (“No corroboration has been required for a conviction of child molestation”). The victim’s testimony alone is sufficient to sustain a conviction. See Chamblee v. State, 319 Ga. App. 484, 485 (735 SE2d 810) (2012) (finding that testimony about the child’s description of the offender’s acts, “standing alone, was sufficient to support the verdict”); see also former OCGA § 24-4-8; Newton v. State, 296 Ga. App. 332, 336 (1) (674 SE2d 379) (2009). Nevertheless, the jury also heard the recorded police interviews of Powell in which he admitted to driving the victim to school, admitted that the victim touched his penis on one occasion, and admitted to lying down with the victim in her bedroom. The jury also heard the testimony of the victim’s mother and the forensic investigator confirming that the victim relayed similar accounts to them.

The testimony in this case supports the conclusion beyond a reasonable doubt that Powell’s actions toward the victim, who was under 16 at the time of each alleged incident, were “immoral or indecent” within the meaning of OCGA § 16-6-4(a)(l). Moreover, the jury was authorized to infer intent from the evidence. See Arnold v. State, 249 Ga. App. 156, 158 (545 SE2d 312) (2001) (“Intent, which is a mental attitude, is commonly detectable only inferential^, and the law accommodates this”). The evidence was easily sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt, and therefore the trial court did not err in denying Powell’s motion for a new trial for lack of sufficient evidence to support his convictions.

2. Powell next asserts that the court improperly allowed the forensic investigator to opine on the victim’s developmental level. Powell contends that the forensic investigator’s opinion on the victim’s developmental level was irrelevant, and that the State sought this testimony in an attempt to bolster the victim’s credibility. Again, we disagree, and further conclude that Powell failed to preserve the relevant issues for appeal.

At trial, the State asked the forensic investigator to describe the victim’s developmental level compared to her age. Powell objected, arguing that the forensic investigator was not qualified as an expert in child development and therefore could not render an opinion on the victim’s developmental age — an objection Powell does not renew on appeal. But no objection was made on the grounds that Powell now asserts as the basis for his appeal. That is, Powell failed to object based upon the relevance of the forensic investigator’s opinion or that the testimony amounted to an opinion on the victim’s veracity.

“To preserve a ground for error, the objecting party must state the specific ground upon which the objection is based[.]” Slade v. State, 287 Ga. App. 34, 35 (1) (651 SE2d 352) (2007); Maxwell v. State, 267 Ga. App. 227, 229 (2) (599 SE2d 228) (2004). The trial court must have the opportunity to be fully informed of the error and to rule on it. Ruffin v. State, 333 Ga. App. 793, 794 (2) (777 SE2d 262) (2015). “When the specific ground of objection is not made at the time the evidence is offered, the failure to do so amounts to a waiver of that specific ground.” Id. (punctuation omitted); see also Hill v. State, 244 Ga. App. 278, 280 (2) (535 SE2d 302) (2000). Objections made at trial cannot be modified or expanded for the first time on appeal. See, e.g., Dunagan v. State, 255 Ga. App. 309, 310 (2) (565 SE2d 526) (2002); Mack v. State, 251 Ga. App. 407, 409 (2) (554 SE2d 542) (2001).

Powell’s objection was not sufficient to notify the trial court of the additional legal grounds he now asserts as his basis for appeal, and Powell sought no ruling from the court on those objections. See Slade, 287 Ga. App. at 35 (1). Therefore, Powell has waived his grounds for appeal on this issue.

Even if Powell had preserved his relevance and improper bolstering challenges to the forensic investigator’s testimony, we find no grounds for reversal. It is error for a trial court to permit a witness “to bolster the credibility of another witness by expressing an opinion that the witness is telling the truth.” Noe v. State, 287 Ga. App. 728, 730 (1) (652 SE2d 620) (2007). Credibility of a witness “ ‘is a matter solely within the province ofajury.’ ” Id. (citing Mann v. State, 252 Ga. App. 70, 72 (1) (555 SE2d 527) (2001)). But this does not require a court to exclude testimony simply because a defendant argues a tangential relation to credibility. In Noe, we observed that this rule prohibits “directly commenting upon the victim’s credibility, i.e., stating T believe the victim; I think the victim is telling the truth,’ or testimony that implicitly goes to the ultimate issue for jury determination, i.e., ‘In my opinion, the victim was sexually abused.’ ” Noe, 287 Ga. App. at 730 (1) (upholding admission of nurse’s testimony that the physical exam was consistent with victim’s allegations). Nothing Powell complains of here even remotely approaches the kind of testimony Noe explains is prohibited.

Decided February 3, 2016.

T. Mack Taylor, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

When asked about the victim’s developmental level, the forensic investigator replied that she “appeared a little — not developmentally 13 in comparison to the other 13 year olds that I’ve interviewed; okay?,” and then expanded on the relevance and meaning of this statement by indicating that there were “some accommodations made on my part to not assume the normal level of development of a thirteen year old while I interviewed her.” This does not constitute impermissible commentary on the victim’s credibility. Accordingly, we find Powell’s second enumeration of error to be waived and without merit.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    A15A1976.
    GIBSON v. THE STATE.
    (782 SE2d 472)
   Per curiam.

On October 29, 2009, Albert Gibson was found not guilty by reason of insanity for the murder of his mother, the aggravated assault of his brother, and other crimes. Following an evaluation, Gibson was involuntarily committed to the custody of the Department of Behavioral Health and Developmental Disabilities (“Department of Health” or “DBHDD”) and confined at the West Central Georgia Regional Hospital in Columbus (“West Central”). See OCGA § 17-7-131 (e) (4). In April 2013, Gibson petitioned the court for release from confinement, see OCGA § 17-7-131 (f), but his petition was denied. Approximately one year later, Gibson filed another petition requesting a hearing on the issue of whether he continued to meet the criteria for involuntary inpatient confinement. The trial court held another hearing, at which time Gibson clarified that he was seeking a conditional release to be moved from West Central to a less restrictive, group home. See OCGA § 37-3-1 (9.1), (10), (12.1). The trial court denied Gibson’s petition based on a finding that Gibson failed to carry his burden of proving by a preponderance of the evidence that he no longer requires involuntary inpatient confinement. Gibson appeals, arguing that the trial court erred by finding he failed to carry his burden of proof to show that he meets the criteria for conditional release from confinement at West Georgia. As more fully set forth below, we now affirm.

Pursuant to OCGA § 37-3-1 (9.1) (A) (i) and (ii), involuntary inpatient treatment is required for a mentally ill person

[w]ho presents a substantial risk of imminent harm to that person or others, as manifested by either recent overt acts or recent expressed threats of violence which present a probability of physical injury to that person or other persons; or ... [w]ho is so unable to care for that person’s own physical health and safety as to create an imminently life-endangering crisis [.]

Under OCGA § 17-7-131 (e) (5), a trial court may conditionally release a defendant who has been found not guilty by reason of insanity and involuntarily committed as an inpatient if the defendant subsequently meets the requirements for outpatient treatment under OCGA §§ 37-3-1 (12.1) and 37-3-90. See also Gray v. State, 295 Ga. App. 737, 737, n.1 (673 SE2d 84) (2009). A mentally ill defendant who petitions for release from involuntary inpatient commitment has the burden of rebutting the presumption of the need for continued inpatient treatment and proving by a preponderance of the evidence that inpatient involuntary treatment is no longer required. Nagel v. State, 262 Ga. 888, 889 (1) (427 SE2d 490) (1993); Nelor v. State, 309 Ga. App. 165, 165-66 (709 SE2d 904) (2011); Gray, 295 Ga. App. at 737. “The trial court, rather than mental health professionals, has the responsibility for deciding applications for release,” Nagel, 262 Ga. at 889 (1), and is required to weigh the evidence in light of the defendant’s burden to overcome the presumption of insanity. Id. at 891-93 (2) (a), (b); Newman v. State, 314 Ga. App. 99, 100 (722 SE2d 911) (2012). In ruling upon an inpatient’s application for release, the trial court acts as the factfinder and determines the credibility of witnesses and the probative value of the testimony concerning whether the defendant should be released and is required to “consider all credible and relevant expert and other evidence presented at the [release] hearing and contained in the trial record on the issue of conditional release.” Gray, 295 Ga. App. at 737.

On appeal from the trial court’s decision, we review the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he or she is no longer in need of involuntary inpatient treatment. Nagel, 262 Ga. at 892 (2) (b); Nelor, 309 Ga. App. at 166. In order to carry out this standard of review, the trial court must make specific findings regarding the evidence and set out his or her conclusions. Nagel, 262 Ga. at 892-93 (2) (b); Newman, 314 Ga. App. at 100.

Viewed in this light, the evidence presented at the hearing shows that Gibson has a long history of mental illness and had been admitted to psychiatric hospitals seven or eight times prior to the time he perpetrated the acts that led to his involuntary confinement at West Central, where he had been involuntarily confined for approximately five years at the time of the hearing. Gibson’s most current diagnosis at that time was schizoaffective disorder, bipolar type, and polysubstance abuse.

Gibson, two expert witnesses, and one nonexpert witness testified at the hearing on his motion. Gibson acknowledged that in the past he was delusional and experienced hallucinations, but said his psychosis is now controlled by medications to the point that he feels “completely normal.” Gibson testified that he gets along well with the other patients and staff at the hospital, participates in activities, and has been granted certain privileges, such as moving around the hospital grounds unattended and going off the hospital grounds on supervised excursions. Gibson testified that on one such excursion he saw his brother in a restaurant, but he did not approach him because Gibson did not know how he would react. Gibson also opined that the unwillingness of his relatives to have contact with him was the product of “distorted thinking” because he is now a completely different person.

Gibson was questioned about his prior drug use. He admitted that in the past he had used legal prescription drugs that acted as stimulants, but when questioned about books found in his apartment at the time of his arrest on how to manufacture LSD and methamphetamine, Gibson maintained that he had purchased those books because he had a “fantasy” about “getting people in the illegal [drug] market to give up their illegal practice and work for the benefit of mankind in the legal market.” Gibson was also questioned on cross-examination about his financial situation, but he would only answer the State’s question after being instructed to do so by the trial court. Gibson then testified that he had approximately $70,000 in savings over which he, not a conservator or family member, had control. He also admitted that he had made statements that it was getting “old” to be hospitalized and that the more he improved the more difficult it became to be around “irrational people that do things that are just crazy.”

Dr. Parmer and Angelina Fontanez testified that in their opinion Gibson no longer met the criteria for involuntary inpatient commitment and that he should be conditionally released to a group home because he had basically gone as far into the recovery process as he could go while hospitalized. Dr. Parmer, whose “Annual Update” report was also introduced into evidence at the hearing, testified that he recommended outpatient commitment instead of outright release because Gibson needed supervision to ensure compliance with treatment recommendations and abstinence from substance abuse, without which Gibson could “relapse into an imminent risk.” Dr. Parmer recommended that Gibson be transferred to a group home operated by the DBHDD in Augusta, or to another comparable DBHDD-run home, where he would reside and be supervised “24/7” by Department staff. However, Dr. Parmer also testified that over time, less supervision might be recommended for Gibson and he might be allowed greater freedom of movement.

Dr. Parmer also testified that while in his opinion Gibson was not currently an imminent risk to himself or others based on his lack of violence or threatening acts toward others and lack of indication of any suicidal ideation, he did have certain concerns about Gibson, especially Gibson’s view about medications as a means to feel better and the risk of Gibson attempting to obtain more medication than he needs to control his condition in order to “get a lift.” Dr. Parmer testified that although there had been improvements, in the past there had been serious concerns about Gibson’s “interpersonal boundaries and relationships,” particularly in relation to “his judgment and who he found attractive and wanted to solicit a personal or romantic relationship from.” Dr. Parmer’s report also stated that Gibson could “react inappropriately” if he became involved with someone who later rejected him, and that he is still “socially awkward” and could be impulsive, although not in a “seriously dangerous manner.” Dr. Parmer also testified on cross-examination that he did not agree with Gibson’s testimony that he was “recovered” and that because Gibson believed he was recovered, he did not fully appreciate the risks of drifting into certain past behaviors, such as self or over-medicating, and did not understand why others did not believe he was recovered. Additionally, Dr. Parmer testified about Gibson’s lack of empathy concerning his family and his lack of understanding concerning why his family did not want a relationship with him. The doctor said this was another reason he recommended continued involuntary commitment, supervision, and psychotherapy. Dr. Parmer acknowledged that Gibson had made remarks expressing frustration with his continued hospitalization and irritation because of “irrational people” who would not allow him to be released even though it had been recommended by his doctors. He explained that one goal of Gibson’s therapy was to enable him to understand that such remarks might be misunderstood and not “go over very well in a courtroom.” Further, Dr. Parmer’s report reflected that “feeling neglected” was a likely “trigger” for Gibson, who had remarked that other patients at the hospital who caused trouble received more attention than he did and speculated that perhaps he should cause trouble to get more attention.

Dr. Parmer also testified that Gibson had engaged in “doctor shopping” for years and that in the past he had used amphetamines and reportedly used methadone in jail. Based on this prior history, Dr. Parmer said he doubted the credibility of Gibson’s testimony that he had purchased the books containing detailed chemical formulas and methods for producing certain drugs for benevolent reasons. Upon questioning by the trial court, Dr. Parmer acknowledged that Gibson could simply not reveal to his doctors if he was delusional or suffering from hallucinations, but he did not believe that Gibson was engaging in that degree of deception. Dr. Parmer also testified, however, that Gibson’s behavior indicated that he was probably delusional, but not revealing it. Moreover, he reiterated that his most serious concern was Gibson’s limited insight or limited understanding that he has not completely recovered, as well as Gibson’s need to be vigilant to avoid triggers and relapse.

Gibson also presented the testimony of William Killings, who had visited Gibson twice a week for the past four years to study the Bible with Gibson. Killings testified that he had never had any problems during his visits with Gibson; that Gibson spoke to him in logical, reasonable terms; and that he did not know the extent of Gibson’s “problem” prior to the hearing.

Numerous letters from Gibson’s family and others were also introduced by the State at the hearing. These letters expressed adamant opposition to Gibson’s release to a group home. These letters noted the trauma that had been inflicted on the family, especially his daughter, because of his actions and their continued fear of Gibson for themselves and/or his family members, including a female family member with whom Gibson had been obsessed since childhood. These letters also expressed “profound concern” if Gibson were released to a less restrictive environment, including that he could find family members’ addresses and phone numbers over the Internet.

Based on the evidence presented, the trial court found that Gibson continued to present a risk of imminent harm to himself and others, citing the following findings to support its conclusion: (1) the extremely violent nature of the original offenses; (2) Gibson’s long history of substance abuse; (3) Gibson’s irritation with continued hospitalization; (4) his relationship patterns; (5) Gibson’s statement to treatment providers that he was giving consideration to the idea that if he caused trouble he would get more attention; (6) his lack of personal support; (7) the large financial estate Gibson accumulated while hospitalized; (8) Gibson’s high level of intelligence and education; (9) the fact that the female relative toward whom Gibson had previously expressed romantic feelings lives in the area of the group home he was requesting; (10) Gibson’s family’s adamant opposition to his release and/or transfer; (11) Gibson’s long history of mental illness, including eight hospitalizations prior to the offenses that resulted in the current hospitalization; (12) the statements by Dr. Parmer that Gibson may not take his illness seriously and/or may not appreciate the gravity of the offenses; and (13) Dr. Parmer’s statement that while there is no evidence to suggest Gibson is faking his recovery, he is certainly intelligent enough to do so.

Decided February 3, 2016.

Michael E. Garner, for appellant.

Julia F. Slater, District Attorney, Robert B. Bickerstaff II, Assistant District Attorney, for appellee.

Although Gibson argues that the evidence did not support these findings and overwhelmingly showed that he should be released from involuntary inpatient confinement, we find that, viewing the evidence in the proper light, the trial court was authorized to find that Gibson failed to carry his burden to prove by a preponderance of the evidence that he should be conditionally released to outpatient treatment in a group home. Accordingly, the trial court’s order denying Gibson’s petition for conditional release is affirmed.

Judgment affirmed. Division Per Curiam.

All the Judges concur.

       Both Gibson and the State consented to this finding.

       It appears that a status conference was also held in 2011 and that Gibson’s status remained unchanged after that hearing.

       OCGA § 37-3-1 (9.2) provides: “ ‘Inpatient treatment’ or ‘hospitalization’ means a program of treatment for mental illness within a hospital facility setting.” Pursuant to subsection (12.2), “ ‘Outpatient treatment’ means a program of treatment for mental illness outside a hospital facility setting” which includes certain services “to alleviate or treat the patient’s mental illness so as to maintain the patient’s semi-independent functioning and to prevent the patient’s becoming an inpatient.” Although Gibson attempts to characterize his request as seeking transfer to a state-run group home for “involuntary inpatient treatment,” he acknowledged at the hearing on his petition that in order to obtain release to the group home, he was required to show that he no longer meets the criteria for “hospitalization,” which means that, notwithstanding his characterization of his request, he is in fact seeking a release from inpatient commitment.

       Gibson had been incarcerated for four years prior to his commitment at West Central.

       Gibson’s two expert witnesses were Dr. John Parmer and Angelina Fontanez. Dr. Parmer has a Ph.D in psychology and is a licensed psychologist at West Central. Fontanez has a masters degree and is also licensed to practice psychology in Georgia. Dr. Parmer had been professionally involved with Gibson since 2009, and Fontanez’s testimony was based on her interview with Gibson and a review of his records prior to the hearing.

       Because Gibson’s history of violence was limited to family members and because his family members vehemently opposed his release to outpatient confinement, the recommendation was for Gibson to be housed in a group home that was “a distance away” from his family, although some of the group homes were located in the same area where some of his relatives currently resided.


author: Ray, Judge.

text:
    A15A1724.
    THE STATE v. OYENIYI.
    (782 SE2d 476)
   Ray, Judge.

The State appeals from the trial court’s order granting Adeshye Oyeniyi’s motion to suppress the results of a State-administered chemical test of his breath obtained at the time of his arrest for driving under the influence. The State contends that the trial court erred in excluding the test results based on its finding that OCGA § 40-5-67.1 (b) (2), Georgia’s implied consent notice for suspects who are age 21 or over (“implied consent notice”), is inaccurate, misleading, and overstates the penalty for refusing to submit to the State-administered test. For the reasons that follow, we reverse.

At the hearing on the motion to suppress, the facts surrounding Oyeniyi’s arrest for driving under the influence and the police officer’s verbatim reading of the applicable version of the implied consent notice were not in dispute. Rather, the basis for the motion to suppress was narrowed solely to the issue of whether the implied consent notice is misleading and overstates the penalty for refusing to take the State-administered test.

Where the evidence at a hearing on a motion [to suppress] is uncontroverted, and no issue exists regarding the credibility of witnesses, we review the trial court’s ruling to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.

(Punctuation and footnote omitted.) State v. Barnard, 321 Ga. App. 20, 20 (740 SE2d 837) (2013).

On March 30, 2014, a Clayton County police officer arrested Oyeniyi for driving under the influence, following too closely, and no proof of insurance. After verifying that Oyeniyi was over the age of 21, the officer read verbatim to Oyeniyi the implied consent notice contained in OCGA § 40-5-67.1 (b) (2). The officer asked Oyeniyi if he had any questions concerning the notice, and he indicated that he did not. Oyeniyi agreed to submit to a State-administered chemical test of his breath for the presence of alcohol, and the results of that test indicated a blood-alcohol concentration of 0.157 grams.

OCGA § 40-5-67.1 (b) (2) provides, in pertinent part, as follows:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. . . .

(Punctuation omitted; emphasis supplied.)

At the hearing on the motion to suppress, Oyeniyi challenged the above portion of the statute. Specifically, he argued that the implied consent notice is misleading and overstates the penalty for a refusal because a minimum one-year suspension is not a certainty. In support of his argument, Oyeniyi pointed out that other portions of the statute, of which he was not advised, contemplate scenarios in which the suspension could be rescinded or terminated in less than the stated minimum one-year period. (See OCGA § 40-5-67.1 (g) (l)-(3), which contemplates an administrative review of the one-year suspension; OCGA § 40-5-67.1 (h), which provides for judicial review of the administrative decision; and OCGA § 40-5-67.1 (g) (4), which provides for early termination of the suspension if the driving under the influence charge is disposed of other than by a conviction or plea of nolo contendere.) The trial court granted the motion to suppress, concluding that the implied consent notice is “inaccurate, misleading, and overstate [s] the penalty for refusing to submit to the State’s test” because it informed Oyeniyi that his driver’s license “ ‘would be suspended for a minimum of one year’ if he refused, when it was only true that [it] might[.]” The trial court further concluded that the current wording of the implied consent notice “deprived [Oyeniyi] of the ability to make an informed decision as to whether he should refuse or consent” to the State-administered test.

In its sole enumeration of error, the State contends that the trial court erred in granting the motion to suppress on this basis. We agree with the State.

Our Supreme Court has acknowledged that the right to refuse to submit to State-administered chemical testing for alcohol or drugs is not a right of constitutional magnitude, but is one created by legislative enactment, and that due process rights are not implicated when the statutory implied consent notice does not inform the driver of all possible outcomes of such a refusal. See Sauls v. State, 293 Ga. 165, 167 (744 SE2d 735) (2013). Thus, in regard to the sufficiency of the implied consent notice, “[t]he determinative issue ... is whether the notice [that was] given was substantively accurate so as to permit [Oyeniyi] to make an informed decision about whether to consent to testing.” (Punctuation and footnote omitted.) Barnard, supra at 23 (1).

Here, the police officer testified that he read verbatim to Oyeniyi the implied consent notice for suspects 21 years of age or over pursuant to OCGA § 40-5-67.1 (b) (2), and a copy of the officer’s implied consent card identical to the one he read to Oyeniyi was admitted in evidence. The notice provides that a suspect’s Georgia driver’s license will be suspended if he refuses to submit to testing. Furthermore, OCGA § 40-5-67.1 (d) provides, in pertinent part, that when a person under arrest for driving under the influence refuses to submit to a chemical test at the request of the law enforcement officer and the officer submits a report to the Department of Driver Services stating that he or she has reasonable grounds to believe the arrested person had been driving under the influence and that the person refused to submit to the State-administered test, “the department shall suspend the person’s driver’s license, permit, or nonresident operating privilege for a period of one year . . . , subject to review as provided for in this chapter.” (Emphasis supplied.)

Thus, the statute provides for a one-year suspension for a refusal. The fact that this suspension may be subject to administrative or judicial review does not mean that the implied consent notice is misleading or overstates the consequence for such refusal. The legislative intent behind the refusal provision of the implied consent notice is to inform drivers “of the potentially most serious consequence of refusal of testing,” Sauls, supra at 168, and the one-year suspension is one such consequence. We can find no authority for the proposition that, in addition to the notice of the one-year suspension, a suspect must also be advised of all conceivable outcomes or possible factors that may affect that one-year suspension.

Decided February 4, 2016

TashaM. Mosley, Solicitor-General, Amanda R. Flora, Assistant Solicitor-General, for appellant.

Rodney A. Williams, for appellee.

Although not directly on point, we find our holding in Gutierrez v. State, 228 Ga. App. 458 (491 SE2d 898) (1997), to be instructive. In Gutierrez, the defendant contended that the implied consent warning given to him was “misleading, coercive, deceptive, and misstated the true and legitimate consequences of both the refusal and submittal” to the test because the notice informed him that his license “would be suspended if he refused to submit to chemical tests and may be suspended if he submitted and results indicated a blood-alcohol concentration of. 10 grams or more.” (Punctuation omitted.) Id. at 460 (2). He argued that the suspension was actually dependent on the officer’s compliance with another portion of OCGA § 40-5-67.1 which is not part of the implied consent notice, specifically subsection (f), which requires the officer to follow proper administrative procedures in order to trigger the suspension. We upheld the sufficiency of the implied consent notice and affirmed the denial of the defendant’s motion to suppress, finding that a license suspension “is a true and legitimate consequence of refusing to submit to . . . the test[,]” and that “[t]here is no unlawful coercion where the officer merely informs the arrestee of the permissible range of sanctions that the [S] tate may ultimately be authorized to impose.” (Citation and punctuation omitted.) Id. See also Singleterry v. State, 227 Ga. App. 155, 156 (3) (489 SE2d 42) (1997) (holding that the implied consent warning given to the defendant was not misleading or coercive because the validity of the implied consent notice is not contingent upon other administrative aspects of OCGA § 40-5-67.1).

Here, the statute clearly authorizes a one-year suspension for a refusal to submit to the State-administered tests. As the implied consent notice given to Oyeniyi recited the exact language of OCGA § 40-5-67.1 (b) (2) and correctly informed him that the State would be authorized to suspend his license for one year as a consequence of a refusal, the implied consent notice given to Oyeniyi was not misleading or an overstatement of the length of suspension authorized by law. Accordingly, the trial court erred in granting Oyeniyi’s motion to suppress on this basis.

Judgment reversed.

McMillian and Mercier, JJ., concur.


author: BARNES, Presiding Judge.

text:
    A15A1956.
    MICHAEL v. THE STATE.
    (782 SE2d 479)
   BARNES, Presiding Judge.

In this case involving an automobile collision in which five people were killed and one person was seriously injured, a Fulton County jury found Aimee Michael guilty of five counts of homicide by vehicle in the first degree, one count of serious injury by vehicle, six counts of hit and run, one count of reckless driving, one count of failure to maintain lane, and one count of tampering with evidence. Michael filed a motion for new trial, which the trial court denied. On appeal, Michael challenges the sufficiency of the evidence. She also contends that the trial court erred in excluding a computer animation video created by her accident reconstruction expert and expert testimony about the precision immobilization technique (“PIT”) maneuver used by police officers to strike a suspect’s car. For the reasons discussed below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010). So viewed, the evidence showed that Michael was the 22-year-old driver of a gold BMW involved in the deadly automobile collision on Camp Creek Parkway in Fulton County on Easter Sunday, April 12, 2009. A Mercedes and Volkswagen also were involved in the collision and were at the scene when emergency personnel and law enforcement officers arrived. However, Michael fled the scene after the collision and was not apprehended by the police until several days later, after she had the damage to her BMW repaired.

Camp Creek Parkway runs east-west and has two lanes of travel in each direction that are separated by a grass median. On the day in question, a married couple and their two children were in a silver Mercedes traveling in the left-hand (or inside) lane of the eastbound lanes of travel. Michael was driving her gold BMW in the right-hand (or outside) lane of the eastbound lanes. Traveling in the opposite direction, a mother and her young daughter were in a Volkswagen in the left-hand (or inside) lane of the westbound lanes.

The BMW and the Mercedes were side-by-side as they traveled in the two eastbound lanes. The BMW suddenly collided with the Mercedes, causing both vehicles to lose control and cross over the median into the westbound lanes of travel. The Mercedes then collided with the Volkswagen traveling westbound, and the Mercedes burst into flames. The four family members in the Mercedes and the daughter in the Volkswagen died as a result. The mother in the Volkswagen lacerated her liver and spleen and broke her legs, foot, collarbone, ribs, and hip. She underwent emergency surgery and extensive physical rehabilitation. In contrast, Michael was not physically injured, and while her BMW had been damaged on the left side, she was able to drive away from the scene.

Two other drivers called 911, and a paramedic and an EMT in an ambulance in the vicinity saw the Mercedes engulfed in flames, called their dispatcher to report the collision, and immediately responded to the scene. The fire department and the police also responded to the scene of the collision. By the time they arrived, Michael had already fled in her BMW.

Michael drove back to her house a few miles from Camp Creek Parkway where she lived with her mother. She usually parked her BMW in the driveway, but she parked it inside the garage with the door closed. The next day, Michael contacted a car repairman whom she knew and invited him to her house under the pretense of discussing health insurance policies. After the repairman arrived at her house and they discussed insurance, Michael showed the repairman her BMW parked in the garage, leading him to believe that the damage to the car was from an old accident. The repairman provided Michael a quote for the repairs, and she agreed to have him perform the work and provided a $1,000 deposit.

The repairman drove the BMW to the automobile repair shop where he worked. He repaired the damage to the BMW, including the damage to the left front fender and the left rear quarter panel and strut, and he had the entire car repainted. The repairs and paint job took one week to complete. Upon completion, Michael’s mother picked up the BMW from the repair shop and paid the balance for the work in cash.

Although Michael fled from the scene and had her damaged BMW repaired and repainted, police investigators were able to determine that another car was involved in the collision based on the tire marks on the roadway. Additionally, pieces of the BMW’s bumper and undercarriage were found at the scene, leading investigators to conclude that the third car was a gold BMW with damage to the left side. There was extensive local media coverage of the collision, and the police released the information about the BMW to the public.

Michael’s neighbors heard about the collision and the description of the BMW on the news and became suspicious that Michael might be involved, particularly when they did not see the BMW in the driveway for several days after the collision. Although Michael denied to her neighbors that she had been involved in the collision, several of them reported their suspicions to the police.

The first time the police went to Michael’s neighborhood in response to the neighbors’ reports shortly after the collision, they saw no BMW. When the lead investigator later returned to the neighborhood to follow up on the reports, he found a BMW parked in the driveway of Michael’s house that smelled of fresh paint and had a new bumper piece on the left side consistent with the BMW involved in the collision. The investigator also looked under the BMW and saw that pieces were missing from the undercarriage consistent with the debris found at the accident scene.

The lead investigator sought and obtained search warrants for Michael’s house and for the BMW. Michael arrived at the house while the police were executing the search warrants and agreed to come to the police station for an interview. After waiving her rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966), Michael spoke with police investigators in a recorded interview that was later played for the jury.

During the recorded police interview, Michael initially claimed that the BMW belonged to her mother and that she had only driven the car around the neighborhood and a few times to work, and she denied any involvement in the collision or that the car had been recently repaired. But when informed by the investigators about their investigation and that pieces of the debris found at the scene matched her BMW, Michael admitted that she had been the driver of the BMW involved in the collision, had left the scene, and had her car repaired. Michael told the investigators that she was driving down the roadway when she quickly turned her steering wheel to the right because she thought the Volkswagen was coming into her lane. She admitted, however, that she may have just been “too close to the line” herself. According to Michael, after steering to the right, she tried to correct by quickly turning back to the left, but the BMW then started spinning and crossed over the median to the westbound lanes of travel. Once the BMW stopped spinning, Michael said that she realized that the Mercedes had burst into flames. Michael never claimed during the interview that the Mercedes hit her first.

After interviewing Michael, investigators interviewed the car repairman who repaired the BMW and had it repainted. He described to investigators the damage to the left side of the BMW that had been repaired at Michael’s direction. He later testified at trial about the repairs and the paint job.

Following an initial delay, investigators obtained recordings of the 911 calls made after the collision. One of the 911 callers had been driving in the right-hand lane of the eastbound lanes of travel on Camp Creek Parkway directly in front of Michael’s gold BMW and had witnessed the collision from her rearview mirror. The lead investigator contacted the witness, who had identified herself in the 911 call, and conducted a recorded interview.

The witness told the investigator and later testified at trial that she had been driving down Camp Creek Parkway when she heard a “popping sound” that she initially thought might be her car. After hearing the popping sound, the witness looked in her rearview mirror and saw a gold car traveling behind her in the same lane and a silver Mercedes in the left lane. According to the witness, the gold car and the silver Mercedes “were next to each other,” and neither car appeared to be in distress at that point. The witness repeatedly looked in her rearview mirror as she continued driving down the road, and after about 30 seconds, she saw the gold car move a little to the right, then back to the left, and then crash into the side of the Mercedes. The witness explained that on impact, “the Mercedes was being moved by the gold car into the divider that was in the middle,” after which she saw flames, stopped at a red light, and called 911. The witness stated that the gold car hit the Mercedes, that she never saw the Mercedes drift into the other lane or hit the gold car, and that the Mercedes did not drive out of control until it was struck by the gold car.

Michael was arrested, indicted, and tried before a jury on five counts of homicide by vehicle in the first degree, one count of serious injury by vehicle, six counts of hit and run, one count of reckless driving, one count of failure to maintain lane, and one count of tampering with evidence. At trial, the defense admitted that Michael was the driver of the gold BMW involved in the collision, fled the scene afterward, had the BMW repaired, and initially lied to the police. But the State and the defense presented different theories as to the cause of the collision, with the State arguing that Michael in her BMW caused the crash, and the defense arguing that the Mercedes caused the crash.

The State’s theory of causation was that Michael, while driving her BMW east on Camp Creek Parkway, veered to the right and then overcorrected to the left, leaving her lane of travel and crashing into the Mercedes in the lane beside her. According to the State, Michael’s actions caused the Mercedes to cross over the median and collide with the Volkswagen traveling westbound, resulting in the deaths and serious injuries that occurred. To support its theory of causation, the State relied upon the testimony of the eyewitness whose car had been in front of Michael’s BMW on Camp Creek Parkway, Michael’s statements during her recorded police interview, and Michael’s admitted efforts to evade the police and destroy evidence after the collision. The State also relied upon accident reconstruction testimony from two experts that focused on the tire marks left on the eastbound lanes by the Mercedes and the BMW.

The defense’s theory of causation was that the Mercedes had encroached into the lane of the BMW, bumping or tapping the BMW on the rear driver’s side quarter panel, thereby setting in motion the chain of events that resulted in the crashes. The defense presented the testimony of its own accident reconstruction expert to support its theory. Michael elected not to testify.

After hearing all the evidence, the jury found Michael guilty on all counts of the indictment. The trial court sentenced her to a total of 50 years, to serve 36 years in custody. Michael filed a motion for new trial, challenging the sufficiency of the evidence and certain eviden-tiary rulings made during the trial. Following a hearing, the trial court denied the motion, resulting in this appeal.

1. Michael contends that there was insufficient evidence of causation to support her convictions for homicide by vehicle in the first degree (OCGA § 40-6-393 (b)) and serious injury by vehicle (OCGA § 40-6-394). Specifically, Michael contends that there was insufficient evidence that her BMW encroached into the other eastbound lane on Camp Creek Parkway and struck the Mercedes, causing the Mercedes to lose control and collide with the Volkswagen in the westbound lane, resulting in the deaths and serious injuries that occurred. We are unpersuaded.

When a defendant challenges the sufficiency of the evidence to support her criminal convictions, we ask only “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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). “So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.” McLeod v. State, 245 Ga. App. 668, 669 (1) (538 SE2d 759) (2000). It is the function of the jury, rather than this Court, to weigh the evidence, resolve conflicts in the lay and expert testimony, and draw reasonable inferences from the evidence. Jones v. State, 315 Ga. App. 427, 427-428 (1) (727 SE2d 216) (2012). And in cases of conflicting evidence over causation, the question is one for the jury to resolve. Hood v. State, 193 Ga. App. 701, 702-703 (1) (389 SE2d 264) (1989). See Caffey v. State, 210 Ga. App. 395, 396-397 (2) (436 SE2d 102) (1993).

Applying these principles, we conclude that the evidence adduced at trial and summarized above was sufficient to authorize a rational jury to find Michael guilty beyond a reasonable doubt of the charged offenses. Jackson, 443 U. S. at 319 (III) (B). The testimony of the State’s accident reconstruction experts, combined with the testimony of the eyewitness who was driving in front of Michael’s BMW and Michael’s statements during her police interview, entitled the jury to find that Michael caused the collision by veering out of her lane of travel and crashing into the Mercedes, setting into motion the chain of events that resulted in the serious injuries and deaths that occurred in this case. See, e.g., Gentry v. State, 236 Ga. App. 820, 821-822 (1) (513 SE2d 528) (1999) (evidence presented by State, including testimony of accident reconstruction expert, was sufficient to show causation and prove vehicular homicide, serious injury by vehicle, and reckless driving); Hood, 193 Ga. App. at 702-703 (1) (evidence presented by State, including expert testimony of accident reconstruction specialist, was sufficient to support vehicular homicide conviction). The jury also could reasonably infer from Michael’s flight from the scene, her destruction of evidence by having the BMW repaired and repainted, and her initial lying to the police that Michael was conscious of her own guilt for the collision. See Thomas v. State, 320 Ga. App. 101, 105 (2) (739 SE2d 417) (2013) (noting that “flight from the scene presents evidence of consciousness of guilt”); Dennard v. State, 241 Ga. App. 794, 796 (527 SE2d 884) (2000) (pointing out that an “attempt to hide from or elude the police constitutes circumstantial evidence of. . . consciousness of guilt”).

Michael nevertheless argues that the State presented circumstantial evidence of causation and that this evidence failed to exclude all reasonable hypotheses except that of her guilt. See OCGA § 24-4-6 (2010). Her argument is without merit because the reasonable hypothesis rule applies only in the narrow context where all of the evidence against the accused was circumstantial. See Lewis v. State, 304 Ga. App. 831, 833 (1) (698 SE2d 365) (2010). Here, there was direct evidence in the form of eyewitness testimony and Michael’s statements during her police interview. See id. (defendant’s admissions were direct evidence of guilt); Green v. State, 298 Ga. App. 17, 22 (1) (679 SE2d 348) (2009) (eyewitness account was direct evidence of guilt). The reasonable hypothesis rule therefore has no application in this case.

It is true that Michael presented opinion testimony from her own accident reconstruction expert that the collision was caused by the Mercedes rather than the BMW. But the jury was entitled to credit the testimony of the State’s two accident reconstruction experts over that of the defense expert. See Heidt v. State, 292 Ga. 343, 345 (1) (736 SE2d 384) (2013) (noting that it is the jury’s role to resolve conflicting expert testimony). The jury also was entitled to find that the defense expert’s testimony conflicted with and was less credible than the account of the eyewitness driving in front of the BMW at the time of the collision, who testified that, from her rearview mirror, she saw the gold car veer left, crash into the Mercedes, and push the Mercedes across the median, and never saw the Mercedes drift into the other lane or hit the BMW. See Farmer v. State, 223 Ga. 364, 366 (3) (155 SE2d 14) (1967) (jury may consider what weight, if any, to afford the testimony of an expert, like the testimony of any other witness). As Georgia courts have repeatedly emphasized, when there is conflicting testimony and expert evidence, “the resolution of such conflicts adversely to the defendant does not render the evidence insufficient,” and thus Michael has failed to assert a persuasive basis for reversal. (Citation and punctuation omitted.) Noel v. State, 297 Ga. 698, 699 (1) (777 SE2d 449) (2015).

2. Michael sought to introduce for demonstrative purposes a computer animation video illustrating how the collision allegedly occurred in the opinion of her accident reconstruction expert. The video showed a simulation from an “overhead perspective view” of the Mercedes drifting into the other lane and striking the BMW, causing the BMW to lose control and setting off the chain of events that culminated in the serious injuries and deaths that occurred. The beginning of the video stated that the simulation was based on the Mercedes traveling 65 mph and the BMW traveling 55 mph.

The State filed a motion in limine to exclude the computer animation video, which the trial court granted. The trial court excluded the computer animation video from use as demonstrative evidence on the grounds that (a) the defense had belatedly disclosed the video in bad faith and in violation of prior discovery orders, thereby prejudicing the State; (b) the defense had failed to show a sufficient scientific or factual basis for the specific depiction of the collision in the video; and (c) there was a “significant difference of opinion” between the State and the defense over how the collision occurred that made the use of a video simulation inappropriate.

On appeal, Michael contends that the trial court abused its discretion in excluding the computer animation video. Pretermitting whether the trial court erred in excluding the video, we find no basis for reversal. “Error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error. It is axiomatic that the exclusion of evidence which is merely cumulative is not reversible error.” (Punctuation and footnotes omitted.) Brown v. State, 268 Ga. App. 24, 27-28 (2) (601 SE2d405) (2004). Although Michael’s accident reconstruction expert was not permitted to use the computer animation video, the expert still was able to use photographs, diagrams, and model cars to discuss and illustrate his opinion of how the collision occurred to the jury. The expert thus had ample opportunity to explain his theory of the collision through demonstrative and illustrative evidence other than the computer animation video. Under these circumstances, even if the trial court erred by excluding the computer animation video, the error does not constitute grounds for reversal of the judgment. See id.; Wilbanks v. State, 165 Ga. App. 876, 879 (4) (303 SE2d 144) (1983) (physical precedent only).

3. As previously noted, when the police investigators interviewed Michael, she never claimed that the collision started by the Mercedes striking her BMW. Michael’s accident reconstruction expert opined, however, that the Mercedes had in fact encroached into the other eastbound lane and bumped the left rear panel of the BMW, causing the BMW to lose control and thus setting in motion the collision that occurred.

To illustrate how the collision was initiated by the Mercedes, the defense sought to analogize to the PIT maneuver used by police officers to immobilize a suspect’s vehicle in a car chase. During his testimony, the defense accident reconstruction expert described the PIT maneuver, noting that an officer normally performs the maneuver by using the front right of his patrol car to strike the left rear of a suspect’s car. The expert further explained that the extent to which a suspect realizes that his car has been struck by the patrol car can vary, and that sometimes the “sensation is little, if at all.”

The trial court granted the State’s motion to exclude additional testimony from the defense expert regarding the PIT maneuver. Specifically, the defense proffered that the accident reconstruction expert would testify that in carrying out a PIT maneuver, a trained officer would have turned to the right after making the initial contact with the suspect’s car, preventing a further collision. The defense argued that the proffered expert testimony would help the defense compare and contrast to jurors the performance of a controlled PIT maneuver with what occurred after the initial impact between the BMW and Mercedes. The trial court found that this proffered testimony about what an officer performing a PIT maneuver is trained to do after making the initial contact with a suspect’s car was irrelevant.

Michael contends that the trial court committed reversible error by excluding the proffered expert testimony regarding PIT maneuvers as irrelevant. “The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” Davis v. State, 301 Ga. App. 484, 488 (3) (687 SE2d 854) (2009). “Evidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible.” (Citation and punctuation omitted.) Craig v. State, 205 Ga. App. 691, 692 (1) (423 SE2d 417) (1992).

Decided February 4, 2016.

Jessica A. Seares, Alixe E. Steinmetz, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

The trial court did not abuse its discretion in finding that the proffered expert testimony was irrelevant. The defense sought to have its expert testify how a trained police officer would have carried through with the PIT maneuver to avoid a collision after making the initial contact with the suspect’s vehicle. But this proffered expert testimony was unrelated to, and would not have assisted the jury in resolving, the causation question that was in controversy, namely, which of the two cars (the BMW or Mercedes) first struck the other car. The trial court thus acted within its discretion by excluding the proffered expert testimony, “as such testimony would not shed light in any reasonable degree on any fact in controversy.” Davis, 301 Ga. App. at 488 (3).

Judgment affirmed.

Ray and Peterson, JJ., concur.

       The mother and daughter were in the Volkswagen, while the father and son were ahead of them traveling westbound in a separate car. The father and son heard the subsequent collision, immediately stopped at the next intersection, jumped out of their car, and ran back to the collision scene.

       After the Mercedes collided with the Volkswagen, the Mercedes began to spin and hit a Honda that also was traveling westbound and pushed it into the guardrail. The driver and passengers in the Honda escaped from their car as the Mercedes burst into flames.

       Michael was an insurance salesperson.

       Michael’s mother was arrested, indicted, and pled guilty to tampering with evidence and hindering the apprehension of a criminal. She is not a party to this appeal.

       OCGA § 40-6-393 (b) provides:
      Any driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of subsection (b) of Code Section 40-6-270 [the hit-and-run statute] commits the offense of homicide by vehicle in the first degree and, upon conviction thereof, shall be punished by imprisonment for not less than three years nor more than 15 years.

       OCGA § 40-6-394 provides in part:
      Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 [the reckless driving statute]... shall be guilty of the crime of serious injury by vehicle.. . .

       The trial court merged Michael’s convictions for hit and run, reckless driving, and failure to maintain lane into her other convictions for sentencing purposes. We do not consider the sufficiency of the evidence with respect to those merged offenses. See Nelson v. State, 277 Ga. App. 92, 96 (1) (b) (625 SE2d 465) (2005). To the extent that Michael challenges her conviction for tampering with evidence (OCGA § 16-10-94 (a)), her admissions during her police interview and the trial testimony of the car repairman clearly were sufficient to support her conviction on this count. Moreover, the defense conceded during closing argument that Michael was guilty of hit and run and tampering with evidence.

       Because this case was tried in 2010, Georgia’s former Evidence Code applies. See Ga. L. 2011, p. 99, § 101 (revised Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”). Former OCGA § 24-4-6 provided: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, hut shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Former OCGA § 24-4-6 is carried forward in OCGA § 24-14-6 of the revised Evidence Code.

       As previously noted, the eyewitness testified that she heard an unidentified “popping sound” before seeing the BMW hit the Mercedes. Notably, however, the eyewitness further testified that she did not believe that the popping sound — which she heard approximately 30 seconds before the crash when the vehicles did not appear to be in any distress —• had come from the Mercedes hitting the BMW.

       Michael argues in her brief that the trial court excluded expert testimony about “the physics of a PIT maneuver,” but the trial court’s ruling was not that broad. Rather, the trial court’s ruling was limited to the specific proffered testimony discussed above.


author: Branch, Judge.

text:
    A15A1808.
    THE STATE v. TITTLE.
    (782 SE2d 487)
   Branch, Judge.

In this DUI case, the State appeals from an order of the trial court that prohibits the State from introducing the defendant’s prior DUI conviction as part of its case-in-chief. Finding that the trial court’s ruling conflicts with the Supreme Court of Georgia’s recent decision in State v. Frost, 297 Ga. 296 (773 SE2d 700) (2015) (“Frost II”), we reverse.

The relevant facts are undisputed, and the record shows that on May 9,2014, a car driven by Joshua Tittle was involved in a single-car accident in Clayton County. The responding officer detected a strong odor of alcohol coming from Tittle’s person and observed that Tittle’s speech was slurred. Tittle admitted that he had consumed alcoholic beverages at some point before driving, and he performed poorly on a field sobriety test administered by the officer. The officer arrested Tittle and read him Georgia’s implied consent notice, but Tittle refused to submit to any chemical testing. Tittle was subsequently indicted on one count each of failure to maintain lane and DUI less safe.

Prior to trial, the State filed notice of its intent to offer into evidence Tittle’s 2006 conviction for DUI. The State intended to offer that evidence pursuant to OCGA § 24-4-417, which provides, in relevant part:

In a criminal proceeding involving a prosecution for a violation of Code Section 40-6-391, evidence of the commission of another violation of Code Section 40-6-391 on a different occasion by the same accused shall be admissible when... [t]he accused refused in the current case to take the state administered test required by Code Section 40-5-55 and such evidence is relevant to prove knowledge, plan, or absence of mistake or accidentf.]

OCGA § 24-4-417 (a) (1).

Tittle opposed the admission of this evidence, and following a hearing, the trial court ruled that the prior DUI conviction could not be introduced as part of the State’s case-in-chief. Relying on this Court’s decision in Frost v. State, 328 Ga. App. 337 (761 SE2d 875) (2014) (“Frost I”), the trial court concluded that Tittle’s prior DUI conviction could be introduced only if, during the presentation of his defense, Tittle attempted “to suggest that he did not take the test because he did not understand it, or he did not know that he could take a test, or that he would never take such a test.” Frost I, 328 Ga. App. at 343 (2) (citation and punctuation omitted). Under those circumstances, the State could introduce Tittle’s prior DUI conviction only in rebuttal, “to [show Tittle’s] knowledge, plan or absence of mistake or accident.” Id. The State now appeals from the trial court’s order.

After the parties filed their briefs in this case, the Supreme Court of Georgia issued its decision in Frost II, which reversed the Frost I decision relied upon by the trial court. Frost II, 297 Ga. at 305-306. The Supreme Court held that the Georgia Evidence Code allows the State to introduce a defendant’s prior DUI conviction as part of its case-in-chief in any DUI prosecution “in which ‘the accused refused... to take the state administered test required by Code Section 40-5-55,’ ” because such evidence is, at the very least, relevant to prove knowledge. Id. at 303, quoting OCGA § 24-4-417 (a) (1). In reaching this conclusion, the Court noted that a defendant’s refusal to submit to the state-mandated chemical tests “generally is admissible, see OCGA § 40-6-392 (d), and a trier of fact may infer from such a refusal that, if the accused had submitted to the test, it would have shown some presence of an intoxicant.” Id. at 304. The Court then explained:

Proof that the accused on prior occasions had driven under the influence of the same or a similar intoxicant may strengthen substantially the inference about the presence of an intoxicant. This is so because, as we noted in [State v. Jones, 297 Ga. 156 (773 SE2d 170) (2015) (“Jones II”)], it might properly be inferred from evidence of prior occasions on which the accused had driven under the influence that the accused had an awareness that his ingestion of an intoxicant impaired his ability to drive safely. Such awareness, in turn, would offer an explanation for why the accused refused the test on this occasion, namely, that he was conscious of his guilt and knew that the test results likely would tend to show that he was, in fact, under the influence of a prohibited substance to an extent forbidden by OCGA § 40-6-391 (a). See Jones II, 297 Ga. at 159 (2). Prior occasions on which the accused was arrested and charged with driving under the influence also could permit an inference in some circumstances that the accused had acquired knowledge about the means by which law enforcement officers determine whether and to what extent a driver is under the influence of an intoxicant, and such awareness likewise might help to explain a refusal in the present case to submit to a test. In either event, the trier of fact might well conclude that an adverse inference about the presence of an intoxicant is more warranted than it otherwise would be, and the trier of fact might decide that the inference can bear more weight than it otherwise could. This is true when the accused refused the required tests on the prior occasions, and it is true even when the accused offers no evidence to explain or excuse his refusal on this occasion.

Decided February 5, 2016.

TashaM. Mosley, Solicitor-General, Amanda R. Flora, Assistant Solicitor-General, for appellant.

Keith E. Adams, for appellee.

Id. at 305.

Applying Frosí II to the instant case, we find that OCGA § 24-4-417 (a) (1) permits the State to introduce evidence of Tittle’s prior DUI conviction during its case-in-chief. We therefore reverse the order of the trial court limiting the State’s use of this evidence to its rebuttal case.

Judgment reversed.

Andrews, P. J., and Miller, P. J., concur.

       The applicable implied consent notice for suspects age 21 or over is set forth in OCGA § 40-5-67.1 (b) (2) and states:
      “Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?”

       See OCGA § 40-6-391 (a) (1) (making it illegal for “[a] person [to] 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”).


author: MERCIER, Judge.

text:
    A15A1825.
    JONES v. THE STATE.
    (782 SE2d 489)
   MERCIER, Judge.

Aaron Jones appeals his convictions for rape, aggravated child molestation, child molestation, and aggravated sodomy. Jones contends that the trial court abused its discretion when it denied his motion for a mistrial, and that the trial court erred by failing to merge his conviction for rape into his conviction for aggravated child molestation. Finding no error, we affirm.

1. In Jones’s first enumeration of error, he argues that the trial court erred by denying his motion for a mistrial after a juror informed the trial court that the verdict of guilty was not her verdict. “The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial.” Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995) (citation omitted). We find no abuse of discretion on the part of the trial court.

The record shows that on November 16, 2012, after conducting a week long trial, the jury informed the court that a verdict had been reached after approximately three hours of deliberation. Upon receiving the signed and dated verdict form from the foreman, the court read the verdict in open court; Jones was found guilty on all four counts. The court proceeded to ask each juror three questions essentially: “Was that your verdict in the jury room?” “Was it freely and voluntarily given?” “Is it still your verdict?” The first five jurors polled answered all three questions in the affirmative; however, when the court reached Juror 6 the reply was in the negative. Specifically:

THE COURT: Juror six, was that your verdict in the jury room?
JUROR: No.
THE COURT: It was not?
JUROR: No.
THE COURT: So that is not your verdict?
JUROR: No.

After this brief exchange the trial court sent the jury out of the courtroom to speak with counsel for both the State and Jones.

Following a brief discussion both parties agreed that the court would first make inquiries of the jury foreman and then Juror 6 before making a determination regarding how to proceed. Outside the presence of the rest of the jury, the foreman expressed surprise at the answers of Juror 6. Furthermore, the foreman informed the court that all 12 jurors had taken part in deliberations, and that Juror 6 had not informed him in the jury room that she did not agree with the verdict.

When the foreman was escorted from the courtroom but before Juror 6 was brought in, counsel for Jones moved the court to declare a mistrial. The grounds as stated by Jones’s counsel were that “the alternates were brought back into the courtroom when the verdict was read.” The court’s reply was that it had not yet been established that the 12 original jurors were unable to reach a verdict. Counsel for Jones then agreed to have the court make further inquiries of Juror 6.

The court then spoke with J uror 6 outside the presence of the rest of the jury. When asked if prior to walking into the courtroom she had informed any of the other 11 jurors that she disagreed with the verdict, Juror 6 replied: “Throughout the whole — this—throughout the whole debate.” The court then inquired, “Was there any of the four counts that you agreed with the verdict or is it all of them you disagree with the verdict?” Juror 6 indicated that after discussions with another juror she “went ahead and agreed to about two of the charges.” The court inquired further as to whether Juror 6 agreed with the verdict as given. She replied, “I disagree.” When the court asked whether further deliberations would be of use, Juror 6 replied, “This is how I felt... when I was going through the whole evidence.”

The trial court then sent Juror 6 out of the courtroom, but not to the jury room, and inquired of both attorneys how they wished to proceed. Counsel for Jones indicated that, “if she’s saying that she does not think that further deliberations would change anything and you wanted to replace her with an alternate, that’s when I would ask for a mistrial.” Thus, defense counsel once again indicated that the motion for a mistrial was grounded in an objection to the use of alternate jurors, not in allowing further deliberations involving Juror 6. The court concluded that there was no legal reason to replace Juror 6 with an alternate, and decided to allow the jury to continue deliberations. Counsel for Jones stated in response, “I think the juror was very clear as to her reasons why she was voting not guilty. I don’t think those reasons will change, but I will leave it with the Court.” The court then denied Jones’s motion for a mistrial. After bringing the jury back in, the trial court re-read a jury instruction charging the jury to “decide this case for yourself” but to “never surrender an honest opinion in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.” After a break for lunch, the jury returned and continued deliberations around 3:00 p.m. After approximately 45 minutes of deliberations, the jury again informed the court a verdict had been reached. Once again the verdict was read, and Jones was found guilty on all four counts. The trial court polled the jury as to their individual verdicts, and all 12 jurors answered that they agreed with the verdict.

After receiving the verdict, the trial court removed the jury from the courtroom to mark the second verdict form to alleviate any confusion with the first verdict form the jury had returned. At this point the trial court inquired of both attorneys, “is there anything you want to put on the record relative to the return of this verdict on the four counts?” Counsel for Jones replied “No, your honor.” The trial court then moved on to an unrelated issue.

“Where a poll of the jury discloses other than a unanimous verdict, the proper procedure is for the trial court to return the jury to the jury room for further deliberations in an effort to arrive at a unanimous verdict.” Benefield v. State, 278 Ga. 464, 465 (602 SE2d 631) (2004) (citations omitted). See also Larry v. State, 266 Ga. 284, 287 (5) (466 SE2d 850) (1996); Miller v. State, 265 Ga. App. 402, 403 (2) (593 SE2d 943) (2004).

In the instant case, Juror 6 disclosed that the initial verdict of guilty was not hers, and consequently the verdict was not unanimous. The trial court then properly returned the jury to the jury room for more deliberations.

Jones argues that the polling of the jury was somehow coercive to Juror 6 and so a mistrial was warranted. For this proposition Jones relies on Brasfield v. United States, 272 U. S. 448, 449 (47 SCt 135, 71 LE 345) (1926), where the United States Supreme Court states “this Court condemned the practice of inquiring of a jury unable to agree, the extent of its numerical division.” Id. at 449. Jones’s reliance on Brasfield is misplaced.

In Brasfield the jury had failed to reach a verdict, and so after an extended period of deliberation the trial judge polled the jury to see how it was divided numerically. The intent of the trial court was apparently to discover how close the jury was to reaching a verdict. Id. Under that set of circumstances it is clear how the polling of a jury before a verdict is reached may in fact be coercive. However, those circumstances do not exist in the instant case.

In Jones’s case, the trial court polled the jury after a verdict had been announced, not before. The trial court’s polling ensured that the verdict was unanimous so that the rights of Jones were protected. It is well settled in Georgia law that “[i]n criminal cases the privilege of polling a jury is the legal right of the defendant.” Maddox v. State, 233 Ga. 874, 876 (2) (213 SE2d 654) (1975) (citation omitted). See also Tilton v. State, 52 Ga. 478, 479 (1874); Williams v. State, 63 Ga. 306 (1879). Ultimately, the outcome of the first polling of the jury was that the verdict was not unanimous. In so polling the jury, the trial court, far from prejudicing Jones, protected his rights, in that a juror who stated the guilty verdict was not her own was discovered, and the jury was appropriately sent back for further deliberations.

Jones argues that, looking at the totality of the circumstances, this practice was in some way coercive. After examining the totality of the circumstances, we disagree. Jones argues that two coercive elements in particular were present: the identity of the dissenting juror was known, and the trial court ordered the jury to continue deliberating after the dissenting juror indicated she disagreed with the verdict. However, a careful consideration of the record does not make it clear that the juror was in fact dissenting. Instead, when asked whether she agreed with the verdict of guilty on any of the counts, Juror 6 replied that she had “agreed to about two of the charges.” At no time did Juror 6 ever state that further deliberations would be futile, or that her opinion was unlikely to change. The trial court, instead of inquiring into the reasoning of the juror, appropriately returned the jury to the jury room for further deliberations. Jones’s counsel did not object to this procedure, nor did she renew the motion for a mistrial when the verdict was eventually read. Most tellingly, when polled for the second time, Juror 6 affirmed that the verdict was hers as given in the jury room, was freely and voluntarily given, and was still her verdict.

Secondly, the identity of a dissenting juror will presumably always be known to the rest of the jury. In this case, the fact that the judge and counsel for both the State and Jones knew that Juror 6 was the juror who had disagreed with the verdict does not add any coercive element. Had Juror 6 still disagreed with the verdict of guilty on all four counts, she could have said so upon the second polling of the jury in much the same way she did after the verdict was announced the first time. She declined to do so, and answered all questions in the affirmative. Under the totality of the circumstances we do not find that Juror 6 was coerced into abandoning an honest conviction. The trial court behaved appropriately when it chose to return Juror 6 to the jury for more deliberations. See Benefield, supra. Accordingly, the trial court’s denial of Jones’s motion for mistrial was not an abuse of discretion.

2. Jones’s second enumeration of error is that the trial court erred when it failed to merge Jones’s conviction for rape (Count 1) into his conviction for aggravated child molestation (Count 2). In considering the question of merger we utilize the required evidence test, which provides: “[Wjhere the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Drinkard v. State, 281 Ga. 211, 215 (636 SE2d 530) (2006) (punctuation and footnote omitted). We find that the counts were predicated on separate incidents and so each provision does require proof of a fact that the other does not, and therefore the trial court did not err when it did not merge Count 1 with Count 2.

To establish the crime of rape, the State proved that Jones had carnal knowledge of “a female who is less than ten years of age.” OCGA § 16-6-1 (a) (2). To establish the crime of aggravated child molestation, the State proved that Jones did an immoral or indecent act to or in the presence of or with a child under the age of 16 years with the intent to arouse and satisfy the sexual desire of himself, and that said act injured the child. OCGA § 16-6-4. Count 2 alleged Jones did so by “inserting his penis into the vaginal area” of the victim.

Jones argues that Count 1 did not require proof of any fact that Count 2 did not. In addition, Jones argues, because the trial court did not specifically find that the jury’s verdict as to Count 1 and Count 2 referred to separate events this would be grounds for merger. In considering this question

the important question is not the number of acts involved, or whether the crimes have overlapping elements, but whether, looking at the evidence required to prove each crime, one of the crimes was established by proof of the same or less than all the facts required to establish the commission of the other crime charged.

Drinkard, 281 Ga. at 216 (footnote omitted).

Jones argues that both Count 1 and Count 2 allege carnal knowledge of the victim. Carnal knowledge is defined by OCGA § 16-6-1 (a) as “when there is any penetration of the female sex organ by the male sex organ.” As Count 1 alleges carnal knowledge and Count 2 alleges conduct identical to the definition of carnal knowledge, this contention is correct. Further, Jones alleges that both counts require proof that the victim was less than 10 years of age. Count 2 as charged required proof that the victim was less than 10 years of age, whereas the statute only requires proof the victim is less than 16. Count 1 required proof that the victim was less than 10. So, Count 1 required the same or less evidence than that of Count 2.

Count 2 requires an additional proof of harm, but Jones argues the evidence necessary to prove Count 1 is already contained in Count 2. Therefore, Count 1 was established by proof of less than all the facts required to prove Count 2. Accordingly, Jones argues, the counts must merge.

Jones’s argument is correct if both counts are based on the same incident. If both counts were based on a single incident, then the required evidence test would not be satisfied and the counts would merge. However, if the counts were based on separate incidents of conduct they do not merge. Carver v. State, 331 Ga. App. 120, 122 (4) (769 SE2d 722) (2015).

The trial court stated at sentencing that it had evidence before it of “at a minimum, two different incidents, two different occurrences, Count 4, on May 1, Counts 1, 2, and 3 sometime between the summer of 2009 and April 30th, 2010.” Jones contends that while the trial court found that the jury based the conviction on the aggravated sodomy count on an event from May 1, 2010, the three other counts were based on a single incident with an indeterminate date between July 2009 and April 2010. Thus, Jones argues, Count 1 and Count 2 are based on one incident and must merge. However, it is not clear from the record that the jury based its verdicts on the two counts on a single incident.

Decided February 5, 2016.

Sandra A. Satchell, for appellant.

Gregory W. Edwards, District Attorney, Cania R. Brown-Gordon, Assistant District Attorney, for appellee.

Based on the evidence introduced at trial there was sufficient evidence for the jury to conclude that Count 1 and Count 2 were based on separate incidents. The State presented evidence that Jones had carnal knowledge of the victim on more than one occasion. On direct examination about a specific incident of assault perpetrated by Jones the victim was asked, “Has this ever happened before?” She replied, “Yes, ma’am.” During the forensic interview the victim was asked how often this type of incident had occurred, and she answered over “30 times.” On direct examination the interviewer indicated that the number 30 was not to be taken literally, but signified “a substantial number” of times in the mind of the child. Furthermore, the registered nurse who examined the victim noted that a physical examination of the child showed two healed injuries to the victim’s hymen that were indicative of trauma such as penetration.

In sum, the State presented substantial evidence that Jones had carnal knowledge of the victim on more than one occasion. In its order denying Jones’s motion for new trial, the trial court pointed to the fact that the jury could have concluded from the evidence presented that there were separate factual incidents on which to base guilty verdicts on both Count 1 and Count 2. The trial court did not err by concluding that the verdicts on Count 1 and Count 2 were based on separate incidents. Because each count was for a separate and distinct incident of conduct, they do not merge for purposes of sentencing. Accordingly, the trial court did not err in failing to merge Count 1 and Count 2.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.


author: MILLER, Presiding Judge.

text:
    A15A1855.
    JACKSON v. THE STATE.
    (782 SE2d 499)
   MILLER, Presiding Judge.

Following a jury trial, Prentiss Ashon Jackson was convicted of failing to register as a sex offender in violation of OCGA § 42-1-12. Jackson appeals from the denial of his motion for new trial, contending that the trial court erred in denying his general demurrer to the indictment. Jackson also contends that the evidence was insufficient to support his conviction and that the trial court erred in denying his motion for a directed verdict. For the reasons that follow, we affirm.

Viewed in the light most favorable to Jackson’s conviction, the evidence shows that on June 2, 2004, Jackson entered a negotiated guilty plea to one count of statutory rape. As required by his conviction, Jackson registered with the sex offender registry, and listed an address in Warner Robins, which is located in Houston County.

Jackson was aware that he was not allowed to move from his registered address without registering his new address within 72 hours. After June 2011, however, Houston County officers were unable to make contact with Jackson at the Warner Robins address. A subsequent investigation revealed that Jackson had moved out of his registered address and was living with his girlfriend in Macon, which is located in Bibb County. During a preliminary hearing, Jackson admitted under oath that he changed his residence and moved to Macon because his registered address had no electricity or water. Jackson, however, did not register the Macon address, or any other address, with the sex offender registry before he was arrested at the Macon address in January 2012.

1. Jackson contends that the trial court erred in overruling his general demurrer to the indictment. We discern no error.

Under OCGA § 17-7-110, all pretrial motions, including demurrers, must be filed within ten days after arraignment. Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007). Where the indictment is so defective that judgment upon it would be arrested, the accused may call attention to this defect at any time during trial, and the indictment may be quashed on oral motion. State v. Shabazz, 291 Ga. App. 751, 752 (2) (662 SE2d 828) (2008).

Here, Jackson orally raised his general demurrer at the close of the State’s case, arguing that the indictment was defective because it failed to allege that he was actually a sex offender who was required to register. Even assuming that Jackson’s oral demurrer was timely raised, he cannot show that the trial court erred in denying his demurrer because the indictment was not fatally defective.

Jackson’s indictment charged him with violating a specific penal statute — OCGA § 42-1-12 — and incorporated the terms of that Code section. OCGA § 42-1-12 pertinently provides that registered sex offenders shall

[u]pdate the required registration information with the sheriff of the county in which the sexual offender resides within 72 hours of any change to the required registration information .... If the information is the sexual offender’s new address, the sexual offender shall give the information regarding the sexual offender’s new address to the sheriff of the county in which the sexual offender last registered within 72 hours prior to any change of address [.]

OCGA § 42-1-12 (f) (5). Jackson could not admit that his acts violated OCGA § 42-1-12, i.e., that he failed to register as a sex offender, and still be innocent of the charged offense. See Dixson v. State, 313 Ga. App. 379, 383 (2) (721 SE2d 555) (2011). Consequently, the indictment was not fatally defective, and the trial court properly denied Jackson’s general demurrer. Id.

2. Jackson contends that the evidence was insufficient to support his conviction and that the trial court erred in denying his motion for a directed verdict. We disagree.

The evidence as set forth above was sufficient to support Jackson’s conviction for failing to register as a sex offender. See Bryson v. State, 282 Ga. App. 36, 39-40 (1) (c) (638 SE2d 181) (2006) (evidence that defendant fled the state and failed to notify county authorities that he changed his residence was sufficient to support his conviction for failure to register as a sex offender); State v. Canup, 300 Ga. App. 678, 681-682 (2) (686 SE2d 275) (2009) (evidence that defendant had been living at a new address for two weeks without notifying local authorities as required was sufficient to support his conviction for violating OCGA § 42-1-12). Because the evidence supported Jackson’s conviction, the trial court properly denied his motion for a directed verdict. Bryson, supra, 282 Ga. App. at 39 (1) (c) (standard of review for denial of motion for directed verdict is sufficiency of the evidence to support a conviction). Accordingly, we affirm.

Decided February 5, 2016

Russell K. Walker, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

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

       See http://georgia.gov/municipality-list.

       Id.

       Specifically, Jackson’s indictment alleged as follows:
      COUNT I
      FAILURE TO REGISTER AS A SEX OFFENDER
      for that the said accused, in the State of Georgia and County of Houston, on or about September 15, 2011, did fail to register his change of address with the Houston County Sheriff’s Office within 72 hours of the change as required under OCGA § 42-l-12[.]

         Without citing to any authority, Jackson also argues that his indictment failed to properly allege venue. Contrary to Jackson’s contention, his indictment specifically alleged that the crime occurred in Houston County. Moreover, the character of the place, i.e., Houston County, was not an essential element of the charged offense. See OCGA § 42-1-12 (2012); see also Grace v. State, 295 Ga. 657, 659 (2) (b) (763 SE2d 461) (2014). Accordingly, Jackson’s indictment properly alleged venue.