author: Ellington, Chief Judge.

text:
    A10A2233.
    DUNN v. THE STATE.
    (706 SE2d 596)
   Ellington, Chief Judge.

A Fulton County jury found Jeffrey Dunn guilty beyond a reasonable doubt of statutory rape, OCGA § 16-6-3 (a); solicitation of sodomy involving a person under the age of 18, OCGA § 16-6-15 (a), (b); and pandering, OCGA § 16-6-12. Dunn appeals from the denial of his motion for new trial, contending that the trial court abused its discretion in dismissing a juror and that it violated his constitutional right to be present during a critical stage of the proceedings. He also claims that he received ineffective assistance of counsel and that his convictions for solicitation of sodomy and pandering should have merged. For the following reasons, we reverse the judgment of conviction and remand this case for retrial.

1. Dunn contends that the trial court abused its discretion when it dismissed a juror during trial without conducting a hearing in his presence and without a sound legal basis for the dismissal.

The trial transcript shows that, at the beginning of the third day of trial and after the jurors were seated in the courtroom, Dunn’s counsel asked the trial court judge, “May we briefly approach?” The judge, the prosecutor, and defense counsel participated in a bench conference outside the hearing of the jury and the court reporter. After the bench conference was concluded, the judge made the following statement to the jury:

You know, the lawyers are great. . . . [T]hey are showing me up in places that I am weak. That takes a lot many times. They reminded me this morning that I should remind you-all, parts of trials are boring, okay. Sometimes they are boring. Sometimes they can make you sleepy, okay. If you get so sleepy that you are . . . unable to hold your head up, we need to stop and give you-all a break, okay. No one in this courtroom can afford the consequence of a juror going to sleep. It’s too important. So, if you can’t keep your attention or whatever, okay, you let me know, and I will take breaks every 15 minutes because your attention is that important. So, let’s stay up. And if you need a break, you call on me, and . . . we will put some caffeine in your ear or something. All right. The State, call your next witness.

An hour later, following the testimony of three witnesses, a bench conference was conducted, after which the judge stated that, “The lawyers have let me know that this next witness could take a little while, so we will take a ten-minute break.”

A few minutes after the jury retired, while the jury was still out of the courtroom, the trial court judge made the following announcement in open court and in Dunn’s presence:

I have released [name omitted], who is juror No. 18, for two reasons. One is that he was asleep most of yesterday, and I’ve got a great concern that he may have missed crucial parts of the evidence. And the second [reason] is that there are two jurors, at least two, who [were] complaining about his body odor today, that it was distracting them from listening to and concentrating on the evidence. And for those reasons, I have released him, which makes our alternate . . . one of the original twelve men. So — all right. Are we ready to go?

The prosecutor responded, “Yes,” then asked, “Do you want, for the record — no objection?” The judge asked him, “Is there any objection from the State?” The prosecutor said, “No.” The judge asked, “How about from the defendant?” Defense counsel said, “No, your Honor.” The judge then said, “Let’s bring [the jury] on out.” According to the transcript, the jury returned to the courtroom 23 minutes after the recess began.

(a) Under OCGA § 15-12-172, a trial court is vested with the discretion to discharge a juror and to replace him or her with an alternate juror at any time during the proceedings, as long as the trial court has a sound legal basis to do so. Brooks v. State, 281 Ga. 14, 18 (3) (635 SE2d 723) (2006); see Payne v. State, 290 Ga. App. 589, 593 (4) (660 SE2d 405) (2008) (“OCGA § 15-12-172 clearly authorizes a trial court, in exercising its discretion, to replace a juror with an alternate whenever it is convinced that the removed juror’s ability to perform his duties is impaired.”) (citations and punctuation omitted). This Court will not interfere with a trial court’s decision to remove a juror from a panel absent an abuse of that court’s discretion. Pinkins v. State, 243 Ga. App. 737, 740 (3) (534 SE2d 192) (2000).

The trial court’s exercise of this discretion must be an “informed exercise,” however,

since the erroneous replacement of a juror may under certain circumstances deprive a defendant of his valued right to have his trial completed by a particular tribunal, his sixth amendment right to a fair, impartial and representative jury, and his due process rights grounded in the entitlement to procedures mandated by state law.

(Citations and punctuation omitted.) Herring v. State, 224 Ga. App. 809, 811 (1) (481 SE2d 842) (1997). Thus,

[t]here must be some sound basis upon which the trial judge exercises his discretion to remove the juror. A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion. Dismissal of a juror without any factual support or for a legally irrelevant reason is prejudicial [to the defendant].

(Citations and punctuation omitted.) State v. Arnold, 280 Ga. 487, 489 (629 SE2d 807) (2006).

In this case, there is nothing in the trial transcript to show that, at any time prior to announcing that he had dismissed the juror, the trial court judge made any statements in open court or in Dunn’s presence or otherwise indicated that he had personally observed the juror sleeping during the trial. Nor does the record show that, when the judge believed that the juror was actually sleeping during trial, he took any steps to wake the juror, or that he questioned the juror in the presence of Dunn and his counsel before deciding to dismiss the juror. And, in the absence of any questioning of the juror on the record, the judge’s assertion that the juror “may have missed crucial parts of the evidence” due to sleeping the previous day lacks any evidentiary support and, thus, appears to be mere speculation on his part. It also begs the question of why the judge did not act immediately if it appeared that the juror was, indeed, sleeping through crucial evidence.

Moreover, regardless of the source and extent of the judge’s awareness of the juror’s alleged inattentiveness, the judge’s statements clearly show that he had no personal knowledge about the juror’s alleged offensive body odor and that, instead, he learned about the problem from someone else. Yet, there is no record of any communication between the judge and this unidentified person. Thus, the record fails to show whether the judge learned of the alleged odor problem through an ex parte communication with one or more of the jurors or through a message from the jurors to the court bailiff; to establish whether the person complaining of the odor had personally observed the problem or had heard about it from someone else; or to show when or where this communication took place, who was present, or what was said. It is undisputed, though, that if there was an ex parte communication between the judge and one or more jurors, Dunn was not present or even aware of it prior to the court’s dismissal of the juror. Finally, as with the alleged problem of the juror sleeping through testimony, there is no record of any effort by the judge to resolve the alleged odor problem before resorting to the extreme remedy of dismissing the juror.

In a case presenting an analogous situation to the instant one, Scott v. State, 219 Ga. App. 798, 799-800 (2) (466 SE2d 678) (1996), the trial court dismissed a juror during deliberations after the foreperson notified the court that the juror was ill and, in the foreperson’s opinion, was unable to continue with deliberations. Before dismissing the juror, the trial court did not make its own independent determination that the juror was, in fact, ill and unable to continue serving, nor did the court give the defendant an opportunity to verify that the juror was too ill to continue and to be heard on the issue before the court made its decision. Id. Under such circumstances, this Court concluded that the trial court’s dismissal of the juror was premature and that the defendant was entitled to a new trial because we were unable to conclude from the record that the juror would have been excused if further inquiry had been undertaken and the defendant had been heard on the issue. Id.

The record in the instant case raises similar concerns. It demonstrates that, if the juror was, indeed, sleeping during trial, the judge failed to seek input from the State and the defense regarding the problem or to make any timely efforts to address the problem before resorting to the extreme solution of dismissing the juror. Further, even though he was lacking in any personal knowledge of the juror’s alleged body odor problem, the judge relied upon information obtained outside Dunn’s presence from unidentified sources of untested reliability in concluding that a problem existed and, upon reaching that conclusion, failed to make any effort to solve the problem in order to avoid dismissing the juror. Finally, to the extent the judge dismissed the juror on the basis of his concern that the juror may have missed “crucial evidence,” such concern is not a sound basis for dismissing the juror absent an effort to determine, in Dunn’s presence and on the record, whether such concern was based upon fact or mere speculation. Therefore, we conclude that the judge abused his discretion in dismissing the juror under the circumstances presented. See Scott v. State, 219 Ga. App. at 799-800 (2).

(b) Although the record demonstrates that the trial judge improperly dismissed the juror in this case, we must still determine whether Dunn waived any objection to the dismissal by failing to assert it at trial or whether he knowingly acquiesced in his counsel’s statement to the judge that the defense had no objection to the dismissal.

“A waiver is an intentional relinquishment or abandonment of a known right or privilege.” (Citation and punctuation omitted.) Russell v. State, 236 Ga. App. 645, 648 (2) (512 SE2d 913) (1999). In the instant case, there is nothing in the record to show that Dunn or his counsel had any knowledge of the judge’s decision to dismiss the juror or the reasons behind that decision until the time of the judge’s abrupt announcement — after the juror had already been released from service. Further, the trial transcript does not show that, after the judge made his announcement, Dunn’s counsel discussed the dismissal with Dunn or asked him if he supported or opposed the dismissal, that Dunn expressly authorized his counsel to waive any objection to the dismissal, or that Dunn personally waived any objection to the dismissal.

As for counsel’s statement that the defense did not object to the dismissal, the record does not support a finding that, by his silence, Dunn knowingly acquiesced in counsel’s statement.

Acquiescence means a tacit consent to acts or conditions, and implies a knowledge of those things which are acquiesced in. One can not acquiesce in a wrong while ignorant that it has been committed, and the knowledge must be of facts. Acquiescence may arise where a person who knows that he is entitled to enforce a right neglects to do so for such a length of time that, under the circumstances of the case, the other party may fairly infer that he has waived or abandoned his right. Whether appellant knowingly acquiesced to the waiver of his presence, by his counsel, is a mixed question of law and fact.

(Citations and punctuation omitted; emphasis supplied.) Russell u. State, 230 Ga. App. at 647 (1). As noted above, there is nothing in the trial transcript that shows that anyone in the courtroom at the time of the judge’s announcement explained to Dunn his rights regarding the dismissal of the juror, nor is there anything in the record to show that counsel consulted with Dunn about how the defense should respond to the dismissal. Moreover, unlike a situation where a judge dismisses a juror for cause and, after consulting with the parties, proceeds with only 11 jurors (an obvious change in the jury’s composition), the substitution of an original juror with an alternate is a more subtle change, and the significance of such a change in the jury’s composition may not be obvious to a criminal defendant.

Thus, under the circumstances presented here, with nothing in the record to show that Dunn was informed that he had a right to be tried by the twelve jurors chosen at the beginning of his trial, that the judge was not authorized to change the composition of the jury by dismissing one juror and replacing him with an alternate without sufficient legal cause, and that he had a right to be present for any questioning or communications that served as a basis for the dismissal, we conclude that Dunn’s silence following his counsel’s waiver of any objection to the dismissal did not constitute his knowing acquiescence to such waiver. See Russell v. State, 236 Ga. App. at 648-649 (2) (noting that, even if it was assumed that the defendants were aware that the trial court was conducting voir dire in their absence, that knowledge did not amount to acquiescence in a waiver of their presence because there was no evidence to show that they also knew that they had a right to be present).

Decided February 24, 2011.

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

Finally, it is important to acknowledge that, at the time of the court’s announcement, the juror had already been released from service. Consequently, any objection to the dismissal by Dunn or his counsel at that time or at any point thereafter would have been futile due to the lack of any remedy.

Accordingly, we conclude that Dunn did not personally waive an objection to the dismissal of the juror, nor was Dunn sufficiently apprised of the law and the facts so that his silence following the abrupt dismissal could be viewed as his acquiescence to either the dismissal or to his counsel’s response. See Sammons v. State, 279 Ga. at 388 (2) (Because the defendant did not waive her right to be present when the trial court dismissed a juror, and because she repudiated her counsel’s apparent waiver of her right to be present at the first opportunity — during the hearing on the motion for new trial, when she was represented by new counsel — the Supreme Court of Georgia concluded that she did not acquiesce in the removal of the juror, reversed her conviction, and remanded the case for a new trial.); Russell v. State, 236 Ga. App. at 648-649 (2). Consequently, we reverse Dunn’s conviction and remand this case for a new trial. Sammons v. State, 279 Ga. at 388 (2); Russell v. State, 236 Ga. App. at 649 (2).

2. Given our decision in Division 1, supra, Dunn’s remaining enumerations of error are moot.

Judgment reversed and case remanded.

Andrews and Doyle, JJ., concur.

       Although defense counsel stated that he had no objection, we have concluded that Dunn did not waive any error in the dismissal of the juror for the reasons explained in Division 1 (b), infra.

       “If at any time, whether before or after final submission of the case to the jury, a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” OCGA § 15-12-172.

       See Foster u. State, 255 Ga. 425, 425-426 (2) (339 SE2d 256) (1986) (“Should a juror fall asleep during the course of a trial!,] it is the duty of the trial judge to awaken him. Should counsel or the parties in a trial observe a sleeping juror!,] it is their duty to bring it to the attention of the court.”); Jones v. State, 233 Ga. App. 291, 294 (5) (a) (503 SE2d 902) (1998) (noting that, when presented with a sleeping juror, the trial judge should take corrective measures to avoid a mistrial, if possible).

       See Smith v. State, 284 Ga. 17, 22 (4) (663 SE2d 142) (2008) (after defense counsel notified the judge that a juror appeared to be sleeping during the trial, the judge questioned the juror individually on the record and initiated changes to accommodate the juror’s efforts to stay awake); Kollie v. State, 301 Ga. App. 534, 546 (13) (687 SE2d 869) (2009) (the trial judge questioned a juror on the record regarding concerns that he had fallen asleep during trial); Freeman u. State, 291 Ga. App. 651, 654 (3) (662 SE2d 750) (2008) (the trial judge questioned a juror on the record after observing that he had fallen asleep during trial).

       We note that a different judge presided over Dunn’s motion for new trial hearing.

       We note that “[t]he right of the defendant to be present at all proceedings against him is an important right guaranteed by our State Constitution, and if a defendant is denied the right to be present at a critical stage, prejudice is presumed and a new trial is mandated.” (Citations omitted.) Payne v. State, 290 Ga. App. at 591-592 (4). See Peterson v. State, 284 Ga. 275, 279 (663 SE2d 164) (2008) (Unlike a violation of the federal constitutional right of a criminal defendant to be present at all critical stages of the proceedings against him, a violation of the corresponding right under the Georgia Constitution is not subject to a harmless error review on appeal. Instead, absent a valid waiver of the right to be present by the defendant, a violation of the right requires reversal and remand for a new trial whenever the issue is properly raised on direct appeal.).
      Further, “[a] colloquy between the trial judge and the jury is a part of the proceedings to which the defendant and counsel are entitled to be present.” (Citation omitted.) Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998). Thus, “the appellate courts of this state have emphasized the importance of trial courts not engaging in any type of ex parte communications with jurors.” (Citations omitted.) Payne v. State, 290 Ga. App. at 592 (4).

       Cf. State v. Arnold, 280 Ga. at 488-490, wherein the court, after learning that the jury foreman had made offensive comments to other jurors during deliberations, questioned the foreman individually and the jury collectively on the record, instructed the foreman that his behavior was inappropriate, consulted with the prosecutor and defense counsel, and, after further questioning of the foreman, dismissed him. The Supreme Court of Georgia found no abuse of discretion in the dismissal of the foreman because, after personally questioning the foreman and observing his demeanor, “the trial court elicited some evidence that, in addition to merely cursing, the foreman was actively humiliating other jurors through the use of vindictive personal attacks wholly unrelated to the important issues being considered by the jury.” (Footnote omitted.) Id. See also Herring v. State, 224 Ga. App. at 810-811 (1) (The trial court dismissed a juror who called the court to report that he would be late that morning due to mechanical problems with his truck and said he would call back with more information, but then failed to call back or appear for duty. After dismissing the juror, the court ordered the juror to appear in court and, during such appearance, the court confirmed the juror’s explanation. This Court found no abuse of discretion because, at the time of the dismissal, the trial court had no information about where the juror was, how long he would be without transportation, or when he would be able to return to court.).

       Cf. Smith v. State, 284 Ga. at 22 (4) (finding that the trial court did not abuse its discretion in refusing to discharge and replace a juror after questioning her about concerns that she was sleeping, confirming that there had been a single, momentary act of her “dozing off,” and taking remedial actions to address the problem); Kollie v. State, 301 Ga. App. at 546 (13) (finding that the trial court did not abuse its discretion in refusing to discharge and replace a juror who fell asleep for only a few seconds between direct and cross-examination of a witness and, after being questioned by the court, assured the court it would not happen again); Freeman v. State, 291 Ga. App. at 654 (3) (finding that the trial court did not abuse its discretion in excusing a sleeping juror who, upon being questioned by the court, stated that he averaged three hours of sleep per night, worked “extremely hard,” and had trouble staying awake during the day, and who asserted that, in order to fulfill his duty as a juror, he would need to know information beyond what was presented at trial).

       See generally Sammons v. State, 279 Ga. 386, 388, n. 12 (612 SE2d 785) (2005) (The Supreme Court of Georgia reminded prosecutors that they “share the duty to ensure a fair trial and that[J if proceedings take place outside the presence of the defendant, the State may alert the trial court of the need to allow the defendant time to discuss the issue with counsel and to permit defendant to place an express waiver on the record.”).

       See, e.g., Hudson v. State, 250 Ga. 479, 483-484 (3) (a) (299 SE2d 531) (1983); Johnson v. State, 214 Ga. App. 77, 78-79 (1) (447 SE2d 74) (1994).

       See OCGA § 15-12-172; Peterson v. State, 284 Ga. at 279; Brooks v. State, 281 Ga. at 18 (3); State v. Arnold, 280 Ga. at 489; Sammons v. State, 279 Ga. at 387-388 (2); Hanifa v. State, 269 Ga. at 807 (6); Payne v. State, 290 Ga. App. at 591-592 (4); Herring v. State, 224 Ga. App. at 811(1).

       Cf. Womack v. State, 273 Ga. App. 300, 306 (3) (c) (614 SE2d 909) (2005) (The trial court notified defense counsel that one of the jurors needed to go home. Before discussing the issue, counsel waived the defendant’s presence. After the juror explained her emergency circumstances, counsel told the court, on behalf of the defendant, that he did not oppose allowing the juror to be excused for cause. Before excusing the juror, the court instructed counsel to confer with the defendant to ensure that he agreed with the decision, and counsel did so. The defendant never expressed any objection to the court’s decision or the fact that the court had discussed the issue with counsel in his absence. Under these circumstances, the Court found that the defendant acquiesced in his counsel’s waiver of his presence.).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A10A2130.
    IN THE INTEREST OF H. A., a child.
    (706 SE2d 615)
   PHIPPS, Presiding Judge.

Sixteen-year-old H. A. was adjudicated delinquent for acts that, if committed by an adult, would constitute burglary. He appeals his adjudication, asserting that the juvenile court erred when, during the hearing on H. A.’s motion to suppress, the court refused to allow a testifying police officer to refresh his recollection with an audio-recording of a police dispatch report. Because H. A. shows no ground for reversal, we affirm.

The evidence showed that late in the afternoon on July 4, 2009, a man (the “first resident”) saw an unfamiliar light blue or turquoise Nissan Quest minivan pull into his driveway. The vehicle occupants appeared surprised to see the man, and after stating that they were looking for someone who did not live at that residence, they quickly left. The man found their behavior suspicious, and he called 911 to report the incident, providing a description of the vehicle and its tag number. A “be on the lookout” (BOLO) dispatch was issued, which described the vehicle and included its tag number.

Also that afternoon, another person who lived in the same area (the “second resident”) arrived at his house to see an unfamiliar vehicle backed into his driveway with its motor running. He saw someone run to the vehicle and quickly drive away. He saw another person run out of his house, across his yard, and up the street. He found the door to his house kicked open and a television set missing. He called 911 to report the incident and shortly thereafter spoke with a police officer at the scene. The man described the vehicle he had seen as blue or grey and said he thought it was a truck, possibly a Dodge brand. BOLO dispatches were issued.

A police officer who was on patrol the day of the burglary testified to hearing a series of BOLO dispatches for a Nissan Quest minivan; at least one of the dispatches gave a tag number and vehicle color. That evening, he and his partner spotted, parked at a gas station, a minivan with a tag number matching the BOLO dispatch. One of the officers contacted the dispatcher and confirmed that the tag number matched.

The officers followed the minivan a short distance before initiating an investigative traffic stop. When they approached the minivan they detected the odor of marijuana; they called a K-9 unit to the scene, and after the dog alerted to the minivan, they searched it. H. A. was a passenger in the minivan, and property later determined to belong to the second resident was found both inside the vehicle and on H. A.’s person.

At the adjudicatory hearing, the first resident identified H. A. as one of the persons he had seen in his driveway. The second resident testified that H. A. appeared to be of the same ethnicity as the person who ran out of his house, but he could not identify H. A. because the person who came out of his house “ran so fast and was covered up[,] I couldn’t really tell.” Someone driving on the second resident’s street the afternoon of the burglary testified to seeing two people in an aqua or light green American-model van back into a driveway and then pull out and drive away very quickly, nearly resulting in a collision.

H. A. moved to suppress the evidence found as a result of the stop and his subsequent detention, on the ground that there was no basis for the stop. To that end, he sought to show that the minivan stopped by the officers did not match the BOLO description of the vehicle connected with the burglary of the second resident’s house. During the suppression hearing, one of the officers testified that he had stopped the minivan because it matched the description given in the BOLO dispatches. The other officer testified that one of the BOLO dispatches described the vehicle, but he could not recall whether a later dispatch also contained a description. The following exchange then occurred:

[Defense counsel]: Are you aware that the radio traffic in your vehicle is recorded?
[Officer]: That’s correct.
[Defense counsel]: Okay and if you were to listen to the radio traffic in your vehicle would it refresh your recollection about what you heard that evening?
[Officer]: Maybe.
[Defense counsel]: Your Honor I ask that this witness be allowed to refresh his recollection of that radio traffic.

The state objected to this request and the court sustained the objection.

I. H. A. contends that the court erred in refusing to permit the officer to refresh his recollection from the audio-recording of the dispatches. The Supreme Court of Georgia has held that, “[a]s long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed by any kind of stimulus.” The officer testified that he was present when the later BOLO dispatch was received but could not recall whether that dispatch contained a vehicle description; he further stated that a recording of that dispatch might refresh his recollection on the issue. Under these circumstances, the court’s refusal to permit the officer to refresh his recollection was error.

Decided February 28, 2011.

Stephen M. Reba, for appellant.

2. Nevertheless, we find that the error was harmless and thus does not warrant reversal of H. A.’s adjudication. An error is harmless when it is highly probable that the error did not contribute to the verdict. In this case, there was evidence that the officers received at least one BOLO dispatch on July 4, 2009 matching the description of the minivan they stopped that day, which provided them with articulable suspicion to warrant their investigative stop of the vehicle. And there was evidence that, upon stopping that vehicle, the officers detected the odor of marijuana and a drug dog alerted to the vehicle; these circumstances provided probable cause for their warrantless search of the vehicle. That other BOLO dispatches may have contained different information did not render illegal the stop or subsequent search. Consequently, the court’s refusal in the suppression hearing to allow the officer to refresh his recollection about the contents of one of the later BOLO dispatches did not contribute either to the court’s decision on the suppression motion or to the court’s adjudication of H. A. as delinquent.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

Gwendolyn Keyes Fleming, District Attorney, Robert H. Wilson, Assistant District Attorney, for appellee.

       The officer first testified that the BOLO dispatch described a green minivan; he later testified that it described a blue minivan.

        Green v. State, 242 Ga. 261, 265 (5) (249 SE2d 1) (1978) (citation and punctuation omitted), rev’d on other grounds, Green v. Georgia, 442 U. S. 95, 97 (99 SC 2150, 60 LE2d 738) (1979).

       See Woods v. State, 269 Ga. 60, 62-63 (3) (495 SE2d 282) (1998) (court’s refusal to allow witness to refresh recollection was error); Green v. State, supra (discussing holding in Smith v. Morning News, 99 Ga. App. 547, 548-549 (1) (109 SE2d 639) (1959) that court erred in refusing to allow witness to refresh his recollection with x-ray photographs). Compare Gibson v. State, 150 Ga. App. 718 (4) (258 SE2d 537) (1979) (court did not err in refusing to allow witness to refresh recollection with audio-recording, where witness did not state that playing of recording would have helped to refresh her recollection).

        Lindsey v. State, 282 Ga. 447, 450 (2) (651 SE2d 66) (2007).

       See Harper v. State, 300 Ga. App. 757, 761 (1) (a) (686 SE2d 375) (2009).

       See Somesso v. State, 288 Ga. App. 291, 293 (2) (a) (653 SE2d 855) (2007).

       See O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010) (affirming conviction despite court’s error in failing to give curative instruction after prosecutor made improper closing argument, because it was highly probable that the error did not contribute to the verdict in light of the strength of the evidence in the case); see also Woods, supra at 63 (3) (holding court’s refusal to allow witness to refresh recollection to be harmless error where appellant’s goal was to use refreshed recollection to impermissibly impeach another witness with a document not prepared by that witness).


text:
    A10A2243.
    SULLIVAN v. THE STATE.
    (706 SE2d 618)
   PHIPPS, Presiding Judge.

After a stipulated bench trial, Kevin Sullivan was convicted of failing to maintain lane and driving under the influence of alcohol (DUI). On appeal, he challenges the trial court’s denial of his pretrial motion, which sought suppression of evidence of “[his] arrest and other related evidence.”

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

Applying that standard of review, we affirm.

The pertinent facts were not in dispute. The officer who conducted the traffic stop of Sullivan was certified by the Georgia Peace Officer Standards and Training Council and employed as a campus police officer by the University of Georgia. At about 2:30 a.m. on April 16, 2009, the officer saw Sullivan’s vehicle repeatedly weave outside its travel lane as Sullivan was driving along a street upon the university’s campus. Thereupon, the officer followed Sullivan and observed continuous weaving for the next few blocks; the officer thus activated his patrol car’s emergency equipment to effectuate a traffic stop for failing to maintain lane. After the officer approached Sullivan, the officer noted that Sullivan had glassy eyes and was emitting the odor of an alcoholic beverage. In addition, Sullivan fumbled as he retrieved his license, stumbled as he walked, fell against his vehicle with his shoulder, and acknowledged that he had consumed “a few alcoholic beverages.” As Sullivan stipulated at trial, “[he] agreed to participate in voluntary field sobriety evaluations.” After the officer conducted the evaluations, he arrested Sullivan for DUI and failing to maintain lane. The officer informed Sullivan of his implied consent rights, and Sullivan refused to submit to a breath test.

In his suppression motion, Sullivan asserted that the campus police officer who arrested him was beyond his jurisdictional area when he activated his patrol car’s equipment, when he conducted the roadside investigation, and when he made the arrest. Sullivan cited OCGA § 20-3-72, which concerns personnel of the University of Georgia and states:

The campus policemen and other security personnel of the university system who are regular employees of the system shall have the power to make arrests for offenses committed upon any property under the jurisdiction of the board of regents and for offenses committed upon any public or private property within 500 yards of any property under the jurisdiction of the board.

At the hearing, the officer recounted that he had observed Sullivan commit several of the traffic violations within the university property. He could not recall the precise moment when he decided to stop Sullivan’s weaving car, testifying, “I was still building a case against him. I was watching his driving. I was — I was just watching him — the vehicle in motion.” However, he estimated that when he activated his patrol car’s emergency equipment to conduct the traffic stop, he was 100 yards beyond the statutory 500-yards limit; Sullivan stopped a reasonable distance beyond that.

In its order denying Sullivan’s motion, the trial court stated, “Counsel for the Defendant challenges the initial stop of the vehicle and subsequent arrest of the Defendant on the basis that [the officer] was outside of his jurisdiction without a basis under law and without legal authority.” Rejecting Sullivan’s challenges, the trial court provided two independent grounds: (i) the officer had observed Sullivan commit traffic violations while in his jurisdictional limits, citing OCGA §§ 17-4-23 and 40-13-30; and (ii) the officer was in “hot pursuit” of Sullivan, citing case law.

1. Contesting the first of these grounds, Sullivan seeks reversal of his convictions for the reason that OCGA § 17-4-23 does not apply to campus police officers. This argument provides no basis for reversal.

Ordinarily, “a peace officer has the power to make traffic stops and to arrest only in the territory of the governmental unit by which he was appointed.” However, as the trial court correctly found, an exception to this rule applies in cases of moving violations. Pursuant to OCGA § 17-4-23, “an officer has authority to arrest a person accused of violating any law or ordinance governing the operation of a vehicle where the offense is committed in his presence, regardless of territorial limitations.” Indeed, “[t]his court has held that two statutes, OCGA §§ 40-13-30 and 17-4-23 (a), . . . authorize police officers to arrest persons for traffic offenses in other jurisdictions.” Pursuant to the latter, “[o]fficers of the Georgia State Patrol and any other officer of this state . . . having authority to arrest for a criminal offense of the grade of misdemeanor shall have authority to prefer charges and bring offenders to trial under [Article 2, Chapter 13, of the Georgia Code].”

Decided February 28, 2011.

Daniels & Rothman, Jeffery A. Rothman, for appellant.

Carroll R. Chisholm, Jr., Solicitor-General, Markus Boenig, Assistant Solicitor-General, for appellee.

The officer in the instant case falls within the ambit of both statutes. Given evidence that the officer observed Sullivan’s illegal driving maneuvers upon the campus, Sullivan has shown no basis for reversal.

2. Our decision in Division 1 renders moot Sullivan’s remaining contention that the trial court erred by relying upon the “hot pursuit” doctrine.

Judgment affirmed.

Miller; P. J., and McFadden, J., concur.

       See OCGA §§ 40-6-48 (failing to maintain lane); 40-6-391 (DUI).

        Weldon v. State, 291 Ga. App. 309 (661 SE2d 672) (2008) (citations omitted).

       See generally White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993) (suppression hearing transcript and trial transcript may be considered on review of suppression ruling); Sanders v. State, 235 Ga. 425, 432 (II) (219 SE2d 768) (1975) (same).

       See OCGA § 20-3-50 (providing that the university system shall consist of the University of Georgia and all of its branches).

        Weldon, supra at 310.

        Page v. State, 250 Ga. App. 795, 797 (553 SE2d 176) (2001).

        State v. Gehris, 242 Ga. App. 384, 386 (528 SE2d 300) (2000) (punctuation and footnote omitted); see Page, supra; Edge v. State, 226 Ga. App. 559, 562 (2) (487 SE2d 117) (1997).

        State v. Heredia, 252 Ga. App. 89, 90 (1) (555 SE2d 91) (2001) (citations omitted); see Weldon, supra at 311; Hawkins v. State, 281 Ga. App. 852, 853 (1) (637 SE2d 422) (2006).

       OCGA § 40-13-30.

       See Hawkins, supra at 853 (1) and n. 6 (holding that campus police officers of the state university system, as contemplated by OCGA § 20-3-72, fall within the broad category created by the words “any . . . officer of this state” of OCGA § 40-13-30; also noting that the specific provisions regarding procedure for arrest for violation of motor vehicle laws are found in OCGA § 17-4-23).

       See Hawkins, supra; Heredia, supra; Page, supra; Edge, supra.

       See Weldon, supra at 310 (pretermitting the resolution of appellant’s argument that trial court erred in applying the “hot pursuit” exception to jurisdictional limitations, and affirming the denial of suppression motion upon conclusion that OCGA §§ 17-4-23 (a) and 40-13-30 authorized officers to arrest persons for traffic offenses in other jurisdictions).


text:
    A11A0107.
    JACOBS v. THE STATE.
    (706 SE2d 737)
   Ellington, Chief Judge.

Following a bench trial, the State Court of Fayette County found Lee Jacobs guilty of driving while having an alcohol concentration of 0.08 grams or more (DUI per se), OCGA § 40-6-391 (a) (5). Jacobs appeals, contending that the undisputed facts established that he was stopped at a highway roadblock that was implemented by a field officer, rather than by a supervisor at the programmatic level, and, therefore, that the trial court erred in denying his motion to suppress evidence obtained as a result of that roadblock. Finding no error, we affirm.

It is axiomatic that stopping a vehicle is a seizure that violates the Fourth Amendment unless it is reasonable. City of Indianapolis v. Edmond, 531 U. S. 32, 37 (II), 40 (III) (121 SC 447, 148 LE2d 33) (2000); Thomas v. State, 277 Ga. App. 88, 89-90 (625 SE2d 455) (2005). In general, a seizure is unreasonable absent some individualized suspicion of a crime. City of Indianapolis v. Edmond, 531 U. S. at 37 (II); Thomas v. State, 277 Ga. App. at 89-90. As a result, “roving patrols in which officers exercise [ ] unfettered discretion to stop drivers in the absence of some articulable suspicion” are unconstitutional. (Citation omitted.) Thomas v. State, 277 Ga. App. at 90. A limited exception to the rule requiring individualized suspicion, however, allows standardized highway checkpoints or roadblocks that serve legitimate law enforcement objectives and that impose minimal intrusions on the motoring public. City of Indianapolis v. Edmond, 531 U. S. at 41-42 (III); LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998).

To justify a stop under this exception, the State must prove that a highway roadblock program “was implemented at the programmatic level for a legitimate primary purpose,” that is, that the roadblock was ordered by a supervisor rather than by officers in the field and was “implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime.” (Citations omitted.) Hobbs v. State, 260 Ga. App. 115, 116 (1) (579 SE2d 50) (2003). “Elevating the roadblock decision from the officers in the field to the supervisory level limits the exercise of discretion by the officers in the field.” Thomas v. State, 277 Ga. App. at 90.

In addition, the State must prove that

all vehicles [were] stopped as opposed to random vehicle stops; the delay to motorists [was] minimal; the roadblock operation [was] well identified as a police checkpoint; and the screening officer’s training and experience [was] sufficient to qualify him [or her] to make an initial determination as to which motorists should be given field tests for intoxication.

(Citation and punctuation omitted.) LaFontaine v. State, 269 Ga. at 253 (3). “[T]he factors in LaFontaine are not general guidelines but are minimum constitutional prerequisites with which perfunctory compliance will not suffice.” (Citation, punctuation and footnote omitted.) Thomas v. State, 277 Ga. App. at 90.

In this case, Jacobs focuses on the dichotomy between field officers and supervisory officers, contending that the officer who implemented the roadblock that led to his DUI arrest was a field officer because she “solely worked in the field.” In addition, Jacobs contends that the officer’s plan to conduct that specific roadblock was not approved in advance by a superior officer at a programmatic level and that the authority to order a roadblock had not been delegated to her, either explicitly by the chief of police or other administrative officer or implicitly through a department manual or formal policy.

The only witness at the hearing on Jacobs’ motion to suppress was Officer Crawshaw, who held the rank of captain in the uniformed division of the Fayetteville Police Department. Crawshaw testified that she decided, before going out on the road at the beginning of the shift, to conduct a roadblock beginning at 1:00 a.m. on July 25, 2009, on Georgia Highway 54 at Cobblestone Boulevard. As a captain, Crawshaw was the senior officer in the field, charged with supervising a shift that consisted of herself, a lieutenant, and at least five officers. Above Crawshaw in the chain of command were one of four majors and the chief of police, who decided the policies within the departments. The Fayetteville police chief established departmental uniform goals, pursuant to which each shift would conduct a certain number of road safety checks per quarter. Before July 25, 2009, Crawshaw discussed the uniform goals generally, along with the prescribed procedure for conducting a roadblock, with the chief and the majors. As a shift supervisor, Crawshaw was authorized by her superiors to plan and implement roadblocks. Although she obtained some input from her subordinates, Crawshaw did not obtain prior approval, either written or verbal, from her superiors of her plan to have a roadblock on July 25, 2009.

Crawshaw was present to supervise the roadblock and did not interact with motorists when the flow of traffic was light. When traffic was backed up, however, she stepped in to assist her subordinates. As a result, Crawshaw was the officer who approached Jacobs’ window and asked for his driver’s license and proof of insurance. She immediately smelled alcohol on Jacobs’ breath, told Jacobs to pull off to the side of the road, and directed a subordinate officer to conduct a DUI investigation. As a result of the investigation, the subordinate officer arrested Jacobs for DUI.

Applying controlling precedents, we conclude that Crawshaw was a supervisor by virtue of the fact that her rank and job duties required her to supervise the work of a number of officers of subordinate rank, even though she supervised those subordinates in the field, rather than from behind a desk, and even though she initially screened Jacobs at the roadblock. Turning to whether the State proved that the roadblock was implemented at the programmatic level for a legitimate primary purpose, we note that our courts have not precisely defined what it means for a decision to be made at the programmatic level. We conclude, however, that Crawshaw’s decision to implement the particular roadblock that resulted in Jacobs’ arrest was made at the programmatic level for a legitimate primary purpose because she decided to set up the roadblock to carry out the directive of her superior officers to conduct road safety checks at a prescribed frequency. Her testimony that she was expressly authorized to plan and implement roadblocks, which was uncontradicted, is sufficient to establish that fact, regardless of whether this delegation of authority was memorialized in a written manual or policy. Further, “the fact that the officer who order[s] [a] roadblock also attend [s] it does not mean that the roadblock was not implemented at the programmatic level.” (Punctuation and footnote omitted.) Harwood v. State, 262 Ga. App. 818, 820 (1) (a) (586 SE2d 722) (2003). There is no evidence that Crawshaw spontaneously decided in the field to conduct the roadblock or that the roadblock had any other characteristic of a roving patrol. Thus, Jacobs’ argument that he was stopped at a highway roadblock that was implemented by a field officer, rather than by a supervisor at the programmatic level, lacks merit. Britt v. State, 294 Ga. App. 142, 143 (1) (a) (ii) (668 SE2d 461) (2008); Gonzalez v. State, 289 Ga. App. at 551; Giacini v. State, 281 Ga. App. at 427-428; Harwood v. State, 262 Ga. App. at 820. Because Jacobs raises no argument with regard to any of the other factors that are relevant to whether a roadblock was reasonable under the Fourth Amendment, we affirm the trial court’s order denying Jacobs’ motion to suppress.

Decided February 28, 2011.

Cook & Lundy, B. Thomas Cook, Jr., for appellant.

Jamie K. Inagawa, Solicitor-General, Joseph B. Myers, Jr., Assistant Solicitor-General, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       When the evidence adduced at a hearing on a motion to suppress is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005).

       See LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998) (“Roadblock stops have appreciably less intrusion on the part of travelers and do not create the fear and surprise engendered in motorists by roving patrol stops because the motorist is not singled out; the traveler is reassured when all vehicles are stopped.”) (citation omitted).

       See City of Indianapolis v. Edmond, 531 U. S. at 48 (III) (Courts’ inquiry into the purpose of a police checkpoint or roadblock “is to be conducted only at the programmatic level”; courts should not “probe the minds of individual officers acting at the scene” to determine Whether the purpose of the roadblock was legitimate.).

       See also United States u. Sczubelek, 402 F3d 175, 201-202 (3d Cir. 2005) (“[N]ever once in over two hundred years of history has the Supreme Court [of the United States] approved a suspicionless search designed to produce ordinary evidence of criminal wrongdoing for use by the police.”) (citation and punctuation omitted).

       See Gonzalez v. State, 289 Ga. App. 549, 551 (657 SE2d 617) (2008) (A roadblock was implemented by a supervisor even though the deciding officer testified that, while his primary duty at the location was to oversee the roadblock, he did occasionally step in and participate when traffic backed up.); Giacini v. State, 281 Ga. App. 426, 428 (1) (636 SE2d 145) (2006) (The mere fact that the deciding officer was present at the scene of the roadblock did not deprive him of “supervisory” status, because he was present in a supervisory capacity.); Hobbs v. State, 260 Ga. App. at 117 (1) (A roadblock was implemented by a supervisor even though the deciding officer personally stopped the defendant’s car at the roadblock, where the officer testified that he went to the location as a supervising officer and that he took no direct role except when his subordinate officers were tied up with other motorists.); see also Perdue v. State, 256 Ga. App. 765, 768, n. 15 (578 SE2d 456) (2002) (physical precedent only) (Although “[allowing an officer in the field, of whatever rank, to decide the time and location of checkpoints seems to have the same potential for abuse as did the much-maligned roving-patrol,” “[n]o dichotomy [between decisions made by field officers and those made by supervisory officers] exists when a supervisor in advance decides on the time and location [for a roadblock] and then goes to the scene to oversee the field officers.”) (citation omitted).

       See, e.g., Giacini v. State, 281 Ga. App. at 427-428 (describing the phrase “at the programmatic level” that originated in City of Indianapolis v. Edmond as “enigmatic”); Baker

        v. State, 252 Ga. App. 695, 701-702 (1) (556 SE2d 892) (2001) (describing City of Indianapolis v. Edmond’s explanation of “an inquiry into purpose at the programmatic level” as “Delphic”).

       See Gonzalez v. State, 289 Ga. App. 549, 550-551 (657 SE2d 617) (2008) (A roadblock was implemented at the programmatic level where the deciding officer was authorized to implement the roadblock pursuant to a policy promulgated by the police chiefs office.); Giacini v. State, 281 Ga. App. at 428 (1) (A roadblock was implemented at the programmatic level where the deciding officer testified that he was authorized to implement the roadblock pursuant to department policy.); Harwood v. State, 262 Ga. App. 818, 820 (1) (a) (586 SE2d 722) (2003) (A roadblock was implemented at the programmatic level where the deciding officer was authorized to order the roadblock pursuant to the department’s policy manual and where that officer’s supervisor had delegated the task to him.); Ross v. State, 257 Ga. App. 541, 542 (1) (573 SE2d 402) (2002) (An officer’s testimony that “Chief of Police policy” authorized him as a supervisor to order roadblocks established that the decision to implement a roadblock was made at the programmatic level.).

       See Rappley v. State, 306 Ga. App. 531 (702 SE2d 763) (2010) (The testimony of an officer that he was a supervising officer with decision-making authority to implement a roadblock at a particular time and place, even though contradicted, was sufficient to establish that fact.); Harwood v. State, 262 Ga. App. at 819-820 (1) (a) (The uncontradicted testimony of an officer that he was a supervising officer with decision making authority to implement a roadblock was sufficient to establish that fact, regardless of the State’s failure to call the officer’s supervisor to verify that authority, even though the officer’s statement that his supervisor gave him authority was hearsay.).

        LaFontaine v. State, 269 Ga. at 253 (3) (The trial court did not err in denying the defendant’s motion to suppress evidence resulting from a roadblock where there was “no evidence of unfettered discretion by the [officers who screened the motorists,]” no evidence that any officer whimsically or arbitrarily singled out the defendant’s vehicle, and no showing that the roadblock was arbitrary or oppressive to motorists.).

       Cf. Thomas v. State, 277 Ga. App. at 90-92 (The trial court erred in denying the defendant’s motion to suppress evidence resulting from a roadblock where the evidence showed that a senior patrol officer, who supervised his shift, met with his subordinates while already on patrol and decided spontaneously to set up a roadblock and where the evidence showed that the deciding officer did not rely on any specific authority or department policy for implementing roadblocks, did not seek approval from his commanding officer before immediately implementing the roadblock, and actively participated in all aspects of the roadblock as did the other field officers.).


author: Mikell, Judge.

text:
    A11A0288.
    PORTER v. THE STATE.
    (706 SE2d 620)
   Mikell, Judge.

James Porter, Jr., was convicted of theft by taking and was sentenced as a recidivist to serve ten years. Porter appeals pursuant to the trial court’s grant of an out-of-time appeal, arguing that the state failed to prove that the value of the items taken exceeded $500. We agree. Therefore, we vacate Porter’s sentence and remand the case with direction that sentencing be imposed for misdemeanor theft by taking.

1. We first address the state’s contention that the trial court lacked jurisdiction to grant Porter’s motion for an out-of-time appeal. In this regard, the record shows that we dismissed Porter’s initial appeal on May 13, 2010, because he failed to file a brief or enumerations of error. Porter filed a motion for an out-of-time appeal on June 14, 2010, and the trial court granted the motion two days later. This Court issued the remittitur to the trial court on June 28, 2010, and the remittitur was filed in the office of its clerk on July 1. Porter filed a petition for certiorari on June 27, which the Supreme Court of Georgia denied on October 18, 2010. The state contends that the pendency of the appeal in the Supreme Court deprived the trial court of jurisdiction to issue the order granting an out-of-time appeal. We disagree.

First, we point out that the effective date herein was July 1, when the remittitur from this Court was filed in the clerk’s office of the trial court. At that point, the trial court was reinvested with jurisdiction over the case. Although the trial court issued its order before receiving the remittitur, not every action by a trial court is barred during the pendency of an appeal. Rather, the trial court cannot execute sentence or entertain “proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters.” Technically, there was no matter on appeal before this Court, because we dismissed the appeal pursuant to Court of Appeals Rule 23 (a) for failure to file a brief or enumerations of error. The basis for the grant of an out-of-time appeal — the right to effective assistance of counsel on appeal from a criminal conviction — was not under consideration. Therefore, we hold that the trial court was not deprived of jurisdiction to grant Porter’s motion.

2. Porter argues that the evidence was insufficient to support his sentence for felony theft by taking because the state offered no probative evidence that the value of the items taken exceeded $500. We agree.

A person commits theft by taking when he “unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property.” Value is not an element of this offense, but is relevant for sentencing purposes. Under OCGA § 16-8-12, a person convicted of theft by taking “shall be punished as for a misdemeanor,” but if the stolen property exceeded $500 in value, then a felony sentence of one to ten years may be imposed.

Porter was convicted of taking an aluminum slide, a ladder, and fishing poles from Sharon Sagon. Construed most favorably to the jury’s verdict, the evidence shows that on February 16, 2008, Sagon observed an unfamiliar truck, a man, and a woman on her lake property in Hampton. Sagon testified that she saw an extension ladder that belonged to her on the back of the truck; that the ladder was 20 to 22 feet long; and that it was worth approximately $150. Sagon observed the woman coming through a hole in the fence carrying an eight-foot aluminum ladder. The woman apparently saw Sagon, as she quickly dropped the ladder and got into the truck. Porter was standing behind her, and Sagon identified him as the thief.

Sagon got within five feet of Porter and told him to stay put because she had called the police. Sagon’s nephew, Gair Eubanks, arrived and confronted Porter, who then threw the extension ladder out of the truck, jumped in and drove off. The police arrived, and Sagon went onto her property to take inventory. She discovered that an aluminum object called “the slide” was missing, and she testified that she observed drag marks leading from its original location to the fence.

Sagon described the slide as a functional piece of artwork, made by her late husband, who was a metal artist, for use in a playground that he had created. Sagon explained that her husband had improved on the original aluminum piece by building a ladder equal to its size and by welding an adjustable bar inside so that “different size kids” could play on it. That ladder, however, was not taken; only the piece of aluminum was stolen. Sagon testified that she and her husband purchased the aluminum ten years earlier for $400; that it was approximately seven-and-a-half feet long by three-and-a-half feet wide; and that it had originally been used for screen printing t-shirts. When asked its worth, Sagon testified that although it was “invaluable” to her, she did not know its value, because it would be based on the price per pound of scrap metal, and metal value was her late husband’s area of expertise. The prosecutor then asked Sagon whether it was worth what she paid for it, and she responded, “yeah.”

Sagon also testified that three fishing poles had been taken, and Eubanks, who bought the fishing poles, testified that they were worth $60 at the time of the theft.

The proper measure of value “is the fair cash market value either at the time and place of the theft or at any time during the receipt or concealment of the property.” Eubanks’s testimony that the fishing poles were worth $60, which was based on his experience in buying them, was sufficient to establish their current fair market value. And the jury could find the value of the extension ladder, an everyday object, was worth $150. But the state did not establish the fair market value of the slide. “[T]he testimony of the owner of the property as to its value without giving reasons therefor is insufficient.” Here, Sagon gave no reason for her opinion as to the current fair market value of the slide, explaining that it would depend on the current value of scrap metal, of which she had no knowledge. Although Sagon testified that the purchase price was $400, “[evidence of purchase price, standing alone, is insufficient to establish the fair market value of the property.” Thus, although the state proved beyond a reasonable doubt that Porter committed the offense of theft by taking, the state’s evidence was insufficient to establish that the current fair market value of the stolen items exceeded $500. Accordingly, the ten-year felony sentence imposed by the trial court is hereby vacated, and the case is remanded to the trial court with direction that sentencing be imposed for misdemeanor theft by taking.

Decided February 28, 2011.

Michael B. King, for appellant.

Tommy K. Floyd, District Attorney, for appellee.

3. Porter asserts that his trial counsel was ineffective. As this claim is premised on his felony sentence, which we have vacated, the claim is moot.

Judgment affirmed, sentence vacated, and case remanded.

Smith, P. J., and Dillard, J., concur.

        Porter v. State, Case No. S10C1665 (October 18, 2010).

       See OCGA § 5-6-45 (a): “In all criminal cases, the notice of appeal. . . shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to bail.”

        Chambers v. State, 262 Ga. 200, 201 (1) (415 SE2d 643) (1992).

       See Moon v. State, 287 Ga. 304, 305 (696 SE2d 55) (2010) (pendency of appeal did not prevent the trial court from hearing a timely filed motion for reconsideration); Strickland v. State, 258 Ga. 764, 765-766 (1) (373 SE2d 736) (1988) (trial court retains the power to amend its order denying a plea of former jeopardy, nunc pro tunc, to find the plea dilatory and frivolous). Compare Chambers, supra at 202 (3) (trial court lacked jurisdiction to hold defendant’s trial while he appealed the denial of his motion to suppress).

       (Citation and punctuation omitted.) Roberts v. State, 279 Ga. App. 434, 437 (1) (631 SE2d 480) (2006), overruled on other grounds, DeSouza v. State, 285 Ga. App. 201, 202, n. 2 (645 SE2d 684) (2007).

       See Hasty v. State, 213 Ga. App. 731-732 (445 SE2d 836) (1994).

       OCGA § 16-8-2.

       OCGA § 16-8-12 (a) (1).

        Perdue v. State, 300 Ga. App. 588 (685 SE2d 489) (2009).

       (Citation and punctuation omitted.) Campbell v. State, 275 Ga. App. 8, 11 (3) (619 SE2d 720) (2005). Accord Partin v. State, 302 Ga. App. 589, 590 (692 SE2d 32) (2010).

        Perdue, supra at 589-590 (1) (“the testimony of the owner of the value of stolen items based upon his experience in buying them, coupled with the jury’s awareness of the value of everyday objects, is sufficient to allow the jury to consider such opinion evidence and make reasonable deductions exercising their own knowledge and ideas”) (punctuation and footnote omitted); Roundtree u. State, 191 Ga. App. 423 (382 SE2d 173) (1989) (jury’s awareness of market value of everyday objects coupled with evidence concerning the cost, date of purchase, and condition of the property, was sufficient evidence of stolen property’s value).

       Cf. Roundtree, supra.

       (Footnote omitted.) Barron v. State, 291 Ga. App. 494, 496 (1) (662 SE2d 285) (2008).

       (Footnote omitted.) DeLong v. State, 270 Ga. App. 173, 175 (2) (606 SE2d 107) (2004); Dunbar v. State, 146 Ga. App. 136, 136-137 (2) (245 SE2d 486) (1978).

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

        DeLong, supra; Waters v. State, 252 Ga. App. 194, 196 (1) (b) (555 SE2d 859) (2001); Gamble v. State, 160 Ga. App. 556, 557 (2) (287 SE2d 593) (1981); Dunbar, supra.

        DeLong, supra at 176 (2); Gamble, supra.


author: BARNES, Presiding Judge.

text:
    A10A1882.
    REESE v. THE STATE.
    (706 SE2d 623)
   BARNES, Presiding Judge.

A jury found Michael Reese guilty of burglary and misdemeanor theft by taking. Reese appeals from the denial of his motion for a new trial, challenging the sufficiency of the evidence. We affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation and punctuation omitted.) Buice v. State, 281 Ga. App. 595 (636 SE2d 676) (2006).

Viewed in the light most favorable to the verdict, the evidence showed that the victim owned a rental home adjacent to his personal residence. The rental home was vacant. Next to the rental home was a stand-alone garage used for storage. On the morning of October 19, 2006, the victim noticed a white vehicle with its trunk open parked near the garage. He then observed one man pulling down copper electrical wire that ran from the rental home to the garage, and another man coming from the direction of the garage with wire window screens that he was tearing up. The victim also saw that the lock to the garage door had been torn off. He called 911 and continued to watch the two men until the police arrived. The victim was between 100 and 150 feet from the two men the entire time that he was observing them.

A police officer responded to the scene and approached the two men identified by the victim, one of whom was Reese, the other of whom was co-defendant Michael Jackson. The officer noticed copper, wire screen, and other materials in the trunk of the white vehicle. When asked why they were on the rental property, Reese and Jackson said they were “just looking around.” The officer placed the two men under arrest and transported them to the police station.

At the police station, Reese and Jackson agreed to speak separately with an investigator after being advised of their Miranda rights. Jackson told the investigator that he had received the window screens from a gentleman that he worked for named Mitchell, and then had decided to go onto the rental property to strip the screens out of the frames. In contrast, Reese told the investigator that the screens had been collected from a trash pile on the side of the road, and that Jackson and he had coasted up to the rental property when their car ran out of gas. Neither of them gave an explanation for the copper or other materials found in the white vehicle. The investigator later testified that when the white vehicle was towed from the rental property to be impounded, it “cranked right up.”

The indictment charged Reese with the burglary of the storage garage owned by the victim and of theft by taking “copper pipes and wiring, window screens, and miscellaneous metal” owned by the victim. At trial, the victim, the responding officer, and the investigator testified to the events as set out above. The victim further testified that the window screens had been stored in his garage, and that some of the screens found inside the white vehicle had come from his garage. Additionally, the victim testified that Reese and Jackson did not have permission to enter his storage garage or to take any items from his rental property. Based on this evidence, the jury convicted Reese of burglary and misdemeanor theft by taking.

The evidence was sufficient to authorize a rational jury to find Reese guilty beyond a reasonable doubt of the charged offenses. Jackson, 443 U. S. 307. It was the exclusive role of the jury, rather than this Court, to assess witness credibility and weigh the evidence. See Odett v. State, 273 Ga. 353, 353-354 (1) (541 SE2d 29) (2001).

With respect to the burglary count, Reese claims that there was no evidence that he entered the storage garage or acted with the intent to commit a theft. We are unpersuaded. While it is true that the victim did not actually see anyone enter the storage garage, the victim testified, as previously noted, that the lock on the garage door had been torn off; that one of the two men had been coming from the direction of the garage while tearing up the window screens; that the window screens had been stored in the garage; and that some of the screens found in the white vehicle had come from the garage. This combined circumstantial evidence was sufficient to entitle a jury to infer that Reese either directly committed burglary by entering the storage garage without authority and with the intent to commit a theft, or was a party to that crime. See OCGA §§ 16-2-20; 16-7-1 (a).

With respect to the count for misdemeanor theft by taking, Reese argues that none of the items found in the trunk of the white vehicle was connected with the storage garage. His argument is without merit. As already discussed, the victim testified that the window screens had been stored in his garage, and that some of the screens found in the trunk came from there.

Decided March 1, 2011.

Teresa L. Smith, for appellant.

W. Kendall Wynne, Jr., District Attorney, Layla H. Zon, Assistant District Attorney, for appellee.

For all of these reasons, Reese cannot succeed on his challenge to the sufficiency of the evidence. The trial court did not err in denying Reese’s motion for a new trial and upholding his convictions.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

        See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       When the indictment lists specific items of stolen property, the State is not compelled to prove the theft of every one of those items to sustain a conviction. See Green v. State, 177 Ga. App. 179, 180 (2) (338 SE2d 761) (1985). Thus, the State could meet its burden of proving theft by taking by establishing that copper pipes, copper wiring, window screens, or miscellaneous metal owned by the victim were taken.


text:
    A10A2060.
    In the Interest of J. G., a child.
    (706 SE2d 741)
   BARNES, Presiding Judge.

The mother of J. G. appeals the juvenile court’s order finding J. G. deprived and giving legal custody to the Department of Family and Children Services (“DFCS”). The mother argues that the court erred in finding clear and convincing evidence that J. G., who was born September 20, 2003, was deprived, and erred in “taking custody of the minor child away from his mother.” For the reasons that follow, we affirm.

On March 6, 2007, DFCS filed a petition alleging that J. G. was deprived because his mother was using cocaine, had a mental health issue that rendered her unable to care for J. G. properly if not treated, had not complied with recommended mental health treatments, and had failed to adequately supervise J. G. The department subsequently was granted temporary custody of J. G. After a shelter care hearing, the juvenile court found on March 13, 2007 that there was probable cause that J. G. was deprived and transferred custody to J. G.’s grandmother, directing her not to allow the mother to be with J. G. without supervision. Following an adjudicatory hearing, the juvenile court determined on April 25, 2007 that the mother was using cocaine, had failed to comply with her mental health care providers’ recommendations, and had failed to adequately supervise J. G. The court directed DFCS to assist the mother in obtaining help for her substance abuse and mental health issues and continued temporary legal custody of J. G. with his grandmother, again with the provision that she not allow the mother to have unsupervised contact with the child. The court also ordered the grandmother not to return custody of J. G. to anyone else without a written order of the court, and concluded that the order would expire on April 16, 2009.

The court held numerous hearings over the next two years in response to the mother’s requests for review, the first of which she filed less than three months after the deprivation order. After three hearings, the juvenile court found on November 27, 2007 that the mother was not complying with the recommendation of her mental health care providers, that her mental health was unstable, and that her home environment was unsafe. The court ordered the mother to complete drug treatment, remain drug free at least six months, take her medication as prescribed, maintain a stable work history and home environment, and allow DFCS and the guardian ad litem access to her home.

Following another hearing at the mother’s request, the juvenile court in May 2008 found that the mother had not completed her reunification plan and was not ready to regain custody of J. G. Her home was still “in a state of clutter and disarray” and contained dangerous items, she was “oblivious” to the beeping of a smoke alarm with a low battery, and she had not been taking her medication properly. The court denied the mother’s request for the return of the child and ordered that “[a]ll future review hearing requests shall only be made by counsel.” After a status hearing in June 2008, the court found on August 11, 2008 that the mother’s home was still in disarray, the mother only having moved clothes and debris from the house to the side of the house. The court also found that the mother continued to exhibit erratic behavior, finding that “[d] espite being told not to contact the Court, she repeatedly telephones several times an hour, day after day, demanding that the Court schedule review hearings.” In addition to completing the tasks described earlier, the court also directed the mother to submit to a hair follicle test and to an evaluation by a counselor, and to follow all recommendations.

Following a review hearing in March 2009, the juvenile court found that the mother had successfully completed several requirements of her reunification plan, such as completing parenting classes and drug treatment, remaining drug free, and taking her medication. She was not financially stable, however, and continued to “exhibit erratic and unstable behavior,” including calling the court constantly about this case despite instructions to go through her attorney and displaying “volatile behavior” at the review hearing. The child told the court he felt he needed to take care of his mother, whose behavior scared him, that he was afraid he would die if he went to live with her, and that she gets loud and hits, kicks, or squeezes him when she becomes angry. The mother admitted disciplining the child by hitting him on his bottom or legs with her hand or a belt. The child was “extremely bonded with his grandmother,” and feared for his safety when he visited his mother, even though he loves her. The guardian ad litem recommended J. G. remain in his grandmother’s custody, and the court denied the mother’s request for return of the child to her home, holding that keeping him with his grandmother was in his best interest.

In August 2009, the mother filed a complaint seeking custody of J. G. She noted that the previous order of adjudication and disposition expired by its terms in April 2009, and contended that she had completed all the requirements of her case plan. The court set a review hearing for September 16, 2009, and on that day the guardian ad litem filed a deprivation petition seeking to have legal custody placed with J. G.’s grandmother. The guardian contended that the mother’s home was not safe, and that the mother had a serious mental health condition, exhibited erratic behavior which scared the child, disciplined the child inappropriately, and lacked the capacity to parent him properly. The parties waived a shelter care hearing, the mother dismissed her complaint seeking custody, and temporary legal custody was given to the grandmother. The juvenile court appointed an investigator and ordered the mother to cooperate and to obtain a psychological evaluation.

The court held hearings on December 10, 2009, December 15, 2009, and January 4, 2010, to address the allegations of the deprivation petition. In a detailed five-page order filed on February 3, 2010, the juvenile court determined that J. G. was deprived. After a disposition hearing on February 4, 2010, the court found that it was in J. G.’s best interest that DFCS design a plan to reunify the child with his mother and ordered the department to develop a case plan to be submitted to the court. Temporary custody was placed with DFCS.

The mother appeals the February 3, 2010 order finding J. G. to be deprived, arguing that the court erred in finding clear and convincing evidence he is a deprived child and erred in taking legal custody from the mother.

1. A “deprived child” is defined, among other things, as a child without the proper parental care or control necessary for the child’s physical, mental, or emotional health. OCGA § 15-11-2 (8) (A). On appeal from a deprivation order, we view the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found clear and convincing evidence of deprivation. In the Interest of A. B., 285 Ga. App. 288 (645 SE2d 716) (2007). We neither weigh evidence nor determine the credibility of witnesses. Id. In balancing the child’s interests against the mother’s parental rights, the juvenile court is vested with broad discretion which will not be disturbed on appeal if the ruling is supported by clear and convincing evidence. In the Interest of J. A., 286 Ga. App. 704, 704-705 (649 SE2d 882) (2007).

The mother argues that when the deprivation petition was filed in September 2009, J. G.’s grandmother had physical custody of him by virtue of the juvenile court’s order of April 2007, even though the order had expired. All parties agreed that the grandmother had been caring for J. G. appropriately, and therefore, the mother argues, J. G. could not have been deprived at that time. Further, the mother argues, she visited the child daily and for years had maintained adequate, stable, safe housing for both of them. She had income sufficient to cover expenses, and she had completed all the classes and counseling she was asked to take. She had remained drug free for years, as proven by numerous drug screens and a hair follicle test. In light of that evidence, she argued, the trial court erred in finding that clear and convincing evidence established that J. G. was deprived.

The juvenile court found J. G. deprived for five reasons: (1) emotional abuse; (2) lack of adequate supervision; (3) inadequate housing; (4) the mother’s mental impairment; and (5) failure to provide adequate support. While evidence in the record establishes that the mother has worked hard to fulfill the goals set for her — remaining drug free, attending counseling, cleaning and organizing her house, and budgeting her income — clear and convincing evidence supports the court’s finding that J. G. has suffered from emotional abuse caused by his mother’s mental impairment and is deprived.

That evidence includes testimony by the juvenile court investigator that J. G. said he did not want to go live with his mother. When asked why, he said because she did not have certain games, but his grandmother testified that the games he mentioned had been put away for two months and that he could take anything he wanted with him to his mother’s house. J. G. did not like visiting with his mother either, but could not or would not say why. He was always anxious and “hyper” while the investigator was present. During supervised visitation with his mother in October 2009, J. G. would not talk to her or remain in the room, but ran out into the hall to find his grandmother. During a second visitation at DFCS, J. G. would not engage with his mother, despite her efforts, but kicked her, banged on the door, and ran out of the room twice. He “shuts down” during visits with her, the investigator observed. The investigator had to try repeatedly to schedule home visits with the mother, who was too busy to meet and could not understand why people kept going in and out of her house when J. G. was not there.

When asked if she thought the mother was taking her medication, the investigator replied that she did not know, but that the mother’s behavior had changed. At first she was cooperative, but then she was always too busy or too tired to meet. The mother told her doctor that she was homeless and slept in her uncle’s shed, but could not explain why she told him that when it was not true. She was opposed to family counseling, because she thought her family got along fine. When the investigator asked for proof of income or copies of bills, the mother replied that the investigator could get all of that information from DFCS and her attorney, and during their last conversation, the mother did not make sense and could not stay on point. The investigator recommended that J. G. stay with his grandmother until he was 18 because as long as he lacked stability, he would remain insecure. He felt safe with his grandmother, and experienced a lot of anxiety over whether he was staying with her or going to live with his mother.

The grandmother testified that she obtained temporary custody of J. G. when his mother was on drugs, and that he had many memories of coming and going between the mother and grandmother, which was hard for him. Mother and son loved each other, but the mother had changed recently, the grandmother observed, perhaps because she was not taking her medication properly. For example, during church services in October 2009, the mother made a scene. She began moving from place to place inside the sanctuary, then took J. G.’s arm and urged him to leave with her. The grandmother took J. G. outside and the mother began pulling on J. G.’s arm while shouting that he was her child. A church member testified that she saw the incident begin inside the church and followed the family outside, because when these things happened “usually [J. G.] gets upset” and does not know what to do, so “[ujsually we try to get them outside so it would not be a disturbance to the other church members.” When the member saw them outside, J. G. was clinging to his grandmother with one arm, crying and confused, while his mother pulled on his other arm. The church member walked J. G. around the corner to console him and dry his tears, then his grandfather put him in the car and took him home. The member said the mother was a nice woman, sometimes quiet and lovable but sometimes not, and thought she was acting abnormally that day.

The grandmother also recounted that before Thanksgiving in 2009, a teacher from J. G.’s school told his mother not to return to the school because she was disrupting class, and over Thanksgiving the mother and her sister got into a physical fight in the grandmother’s living room. While J. G. was not present during the altercation, he came down after his grandfather had separated the siblings and saw his aunt crying and his mother told to leave the house. The grandmother testified, “[The mother] thinks I want her child and God knows I don’t want her child. I’m 59 years old. I don’t need another child. All I want is for her to be well. . . and take her medication.” J. G. and his mother play like children, and he loves her, the grandmother testified, but he did not want to be around her when she was off her medication. J. G. would “holler and scream like a two-year-old” rather than leave his grandmother’s house to visit his mother, and would not stay at his mother’s house for even an hour the day before the hearing. When the mother did not take her medication, she became confused and her mannerisms were different, the grandmother said.

The mother testified that she had merely tried to hug J. G. at church, and that the witnesses who testified otherwise had been coached by J. G.’s grandmother. She explained that her son said he did not want to live with her because he did not want to hurt his grandmother’s feelings and she admitted that it upset J. G. when he witnessed disputes between his mother and grandmother. The mother testified that the grandmother, her mother, ordered her around as if she were a child, and she was “fed up with it.” She had come to court twenty times, and volunteered that she was angry with her mother because she let her begin drinking alcohol when she was five years old.

The juvenile court noted that during the second day of the deprivation hearings, the mother was rocking back and forth in her chair, making quick, jerking eye and head movements and talking to herself. While the mother disputed other witnesses’ testimony that she had not provided documentation of income and expenditures as requested, the court found the mother was not credible and that her testimony was inconsistent. The mother minimized the events at church and school described above and testified that J. G. was not harmed by them. She also denied being off of her medication, but the court found that her demeanor on the stand and her inconsistent testimony indicated her dishonesty. In sum, the juvenile court found that

the mother’s testimony was illustrative of her continued inability to protect her child and to view occurrences only from her own perspective. She exhibited behavior indicative of her inability to consider what is best for her child, and was extremely self-serving. She appeared to this Court to be unaware of the distress that she continues to cause her own child, and was quick to blame others for her inability to maintain a safe and stable home for [J. G.].

The juvenile court’s role is to weigh the evidence, and this court’s role is to determine whether any rational trier of fact could have found clear and convincing evidence of deprivation. In the Interest of A. B., 285 Ga. App. at 288; In the Interest ofJ. B., 274 Ga. App. 564, 568 (618 SE2d 187) (2005). In deciding whether a child is without proper parental care or control, a finding of deprivation is authorized if evidence establishes that the parent has been diagnosed with a mental illness, and that the parent’s behavior and symptoms as a result of the illness reflect that she cannot adequately and safely care for the child. See OCGA § 15-11-94 (b) (4) (B) (i); In the Interest ofE. G., 284 Ga. App. 524, 528-529 (1) (b) (644 SE2d 339) (2007); In the Interest of D. A. B., 281 Ga. App. 702, 703-704 (1) (b) (637 SE2d 102) (2006).

Despite evidence that the mother fulfilled many of the goals set for her by the court, sufficient evidence supports the court’s finding that, as a result of her mental illness, the mother cannot adequately care for J. G., even if her unfitness is unintentional. Construed in the light most favorable to the juvenile court’s finding of deprivation, sufficient evidence supports the juvenile court’s conclusion that J. G. was deprived as to the mother.

2. The mother asserts that the juvenile court erred in giving custody of J. G. to DFCS, arguing that her mental impairment does not render her unable to parent him. The three incidents cited by the juvenile court as illustrations that the mother’s conduct emotionally disturbed the child were of limited relevance, she argues, because they occurred while the mother did not have physical custody. While some evidence in the record supports the conclusion that J. G. was not disturbed by these incidents, other evidence showed that J. G. was very distressed by disputes between his mother and grandmother. The evaluating psychologist confirmed the mother was bipolar with a schizoaffective disorder, was highly suspicious, bitter, and hostile, and was hypersensitive and unforgiving. She reported a chronic feeling of being unloved, and it appeared that she had J. G. to satisfy her need to be loved. The psychologist characterized this mother-child relationship as “inappropriate,” noting the mother’s statement that child-proofing her house for a six-year-old was “stupid.”

Given all of this evidence, the juvenile court was entitled to infer that J. G. would not be safe in his mother’s custody and that she could not properly care for him at the time of the deprivation hearing. Thus, the juvenile court did not err in removing legal custody of J. G. from his mother. See In the Interest of S. D. H., 287 Ga. App. 684, 689 (652 SE2d 570) (2007).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Decided March 1, 2011.

Richard C. Metz, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Beckmann & Lewis, Leo G. Beckmann, Jr., Taylor, Odachowski, Schmidt & Crossland, Carrie Murray Nellis, for appellee.


text:
    A10A2196.
    HERNANDEZ-LOPEZ v. THE STATE.
    (706 SE2d 626)
   BARNES, Presiding Judge.

Roberto Hernandez-Lopez was convicted of kidnapping and possession of a firearm during the commission of a crime. On appeal from the denial of his motion for a new trial, he challenges the sufficiency of the evidence. For the reasons discussed below, we affirm.

On appeal of a criminal conviction, this Court’s duty is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.

(Citations and punctuation omitted.) Walker v. State, 282 Ga. 406 (651 SE2d 12) (2007).

Viewed in the light most favorable to the verdict, the evidence showed that at the time of the crimes at issue, the victim was married to Hernandez-Lopez. However, the two were separated and the victim was residing at a domestic violence shelter. On March 23, 2008, Hernandez-Lopez approached the victim as she was walking to her car after a church service. Hernandez-Lopez got into the victim’s car against her will, revealed a pistol in his waistband, and forced her to drive both of them to a nearby residence. Hernandez-Lopez told the victim that he wanted to get back together with her and wanted her to travel to Mexico with him.

While traveling in the car, the victim received a phone call from a friend, who became concerned for the victim’s safety when he overheard her crying and arguing with Hernandez-Lopez. The friend went to the police department and reported what he had heard. The police then contacted the domestic violence shelter and related that the victim may have been kidnapped by Hernandez-Lopez.

Decided March 1, 2011.

David C. Walker, for appellant.

The director of the shelter located the address that the victim had provided for Hernandez-Lopez and traveled to the residence to see if the victim was there. The director saw the victim sitting in the driver’s seat of a car with the defendant standing in front of the car. The director contacted the police and informed them that she had located the victim.

When a responding sheriffs deputy arrived at the residence, the victim and Hernandez-Lopez were standing outside. As the deputy exited from his patrol car, the victim ran up to him crying. The deputy asked the victim if she was okay, and she shook her head no. The deputy then approached Hernandez-Lopez and asked if he had a gun. Hernandez-Lopez pulled up his shirt and revealed a loaded semi-automatic pistol consistent with that later described by the victim, but told the deputies that “he wasn’t going to hurt anybody, he was just trying to scare them.” At that point, he was taken into custody. In a subsequent recorded interview with a police investigator, Hernandez-Lopez admitted that he had been carrying a gun and had intended to use it to frighten the victim.

The victim testified at trial to the events as set out above. Among other witnesses, the State called the friend who phoned the victim during the incident, the director of the shelter, and the responding deputy to corroborate the victim’s testimony. The State also introduced into evidence and played for the jury Hernandez-Lopez ⅛ interview with the police investigator. Based upon this evidence, the jury convicted Hernandez-Lopez of kidnapping and possession of a firearm during the commission of a crime.

The evidence was sufficient to authorize a rational jury to find Hernandez-Lopez guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Indeed, the victim’s testimony, standing alone, could sustain the convictions. See OCGA § 24-4-8; Harris v. State, 283 Ga. App. 374, 376-377 (1) (a) (641 SE2d 619) (2007). While Hernandez-Lopez argues that the jury should not have believed the victim, it was for the jury, not this Court, to assess witness credibility and weigh the evidence. See Odett v. State, 273 Ga. 353, 353-354 (1) (541 SE2d 29) (2001). Thus, Hernandez-Lopez’s challenge to the sufficiency of the evidence lacks merit and provides no basis for reversal.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

S. Hayward, Altman, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.