text:
    A11A0275.
    STALEY v. THE STATE.
    (711 SE2d 70)
   SMITH, Presiding Judge.

This is the third appeal by Edward Staley. Staley, represented by counsel, pled guilty to one count of child molestation and one count of aggravated child molestation in Hall County on April 22, 2002. He also pled guilty to similar charges in Chatham, Cherokee, and DeKalb counties. See Staley v. State, 284 Ga. 873 (672 SE2d 615) (2009); Staley v. State, 297 Ga. App. XXV (2009) (unpublished). Five years later, Staley filed numerous motions in the Chatham, Cherokee, and Hall county cases, seeking to set aside his conviction and sentence pursuant to OCGA § 17-9-4. Id. In the case before us now, the Superior Court of Hall County denied 17 of his motions, and Staley appeals. Finding no merit in any of Staley’s contentions, we affirm.

1. Staley’s appellate counsel asserts a single enumeration of error on Staley’s behalf, contending, apparently for the first time, that the trial court did not consider a factual basis for his guilty plea. We disagree. Even assuming, without deciding, that Staley has properly asserted this ground, and that he could show that he has not slept on his rights and that manifest injustice would result unless his guilty plea were invalidated, see Moore v. State, 304 Ga. App. 105, 106-108 (695 SE2d 661) (2010), the face of the record shows that a factual basis for his plea in fact was given and considered by the trial court.

Each count of the indictment was read into the record verbatim, and Staley testified in response to the trial court’s questioning that he had received and read the indictment and understood the charges against him. This was sufficient to show a factual basis for his plea. Brown v. State, 280 Ga. 658, 659 (2) (631 SE2d 687) (2006). Moreover, the trial court questioned Staley and asked him specifically if he was guilty of the acts charged in the indictment, and Staley responded that he was. This was also sufficient to show that he understood the offenses with which he was charged and confessed his guilt. Thompson v. State, 240 Ga. App. 539-540 (1) (b), (c) (524 SE2d 239) (1999).

2. We are mindful of appellate counsel’s diligence in attempting to set out all the errors asserted by Staley in his other pro se motions, although counsel believes that they have no merit and makes clear that appellant and not counsel asserts these errors. The Georgia Supreme Court addressed Staley’s similar pro se contentions with respect to his Chatham County guilty plea in Staley, supra, 284 Ga. at 874 (2), and we previously addressed his similar pro se contentions with respect to his Cherokee County guilty plea in Staley, supra, 297 Ga. App. at XXV As in our previous opinion, “[w]e decline to address Staley’s remaining claims of error based on grounds not properly raised in an OCGA § 17-9-4 motion.” Id.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Decided May 6, 2011.

Daniel J. Sammons, for appellant.

Lee Darragh, District Attorney, for appellee.

       Although it is difficult to discern all of Staley’s contentions from his numerous and verbose pro se pleadings in the trial court, it does not appear that this ground was asserted below. Appellate counsel asserts that the issue was briefed below, but fails to provide a citation to the record to show the manner in which the claim of error was preserved, as required by Court of Appeals Rule 25 (a) (1). Staley disagrees with his appointed appellate counsel, disavows his arguments, and attempted to have him removed below. In an excess of caution, and mindful of the trial court’s intention that Staley have an out-of-time appeal of all his various motions, we nevertheless consider this contention.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A11A0376.
    BROWN v. LAWRENCEVILLE PROPERTIES, LLC.
    (710 SE2d 682)
   Andrews, Judge.

Timothy Brown brings this appeal from the trial court’s grant of partial summary judgment in the amount of $171,485.70 to the landlord Lawrenceville Properties concerning Brown’s personal guarantee of a restaurant lease in default. Brown argues that various documents executed after the original lease amount to a novation such that his guarantee of LRG Group’s nonperformance would be excused. We disagree and affirm.

The undisputed facts are that on December 15, 2004, the restaurant tenant Lil’ River Grill, Inc. entered into a five-year lease with Lawrenceville. Although the lease specified that its term lasted from April 2004 — that is, before the execution of the document — through March 2009, another part, initialed by agents for both sides, moved up the possession date, with Lil’ River’s option to terminate if not put into possession, from May 1, 2005 to June 1, 2005. The lease also required the parties to specify the actual commencement date of the lease, as follows:

[Lil’ River] agrees that, at the request of Landlord, [Lil’ River] shall, following the Commencement Date, execute and deliver a recordable memorandum (Exhibit “E”) . . . containing the basic provisions of this Lease, acknowledging that [Lil’ River] has accepted possession of the Premises[,] and reciting the exact Commencement Date and termination date of the original Lease Term. . . .

The lease specified that Lil’ River would first owe rent on the earliest of three dates: (i) ten days after the premises were “substantially complete and a Certificate of Occupancy is issued”; (ii) the first date on which Lil’ River occupied the premises “for business”; or (iii) “78 days” after the execution of the lease, or March 3, 2005. Brown signed the lease with William Green as representatives of Lil’ River, and the two also signed an unconditional guarantee of Lil’ River’s obligations under the lease.

At or soon after the execution of the lease, Brown and Green also signed a document entitled “Exhibit E: Confirmation of Commencement Date.” This version of Exhibit E bears neither an execution date nor a specific lease term. According to Todd Johnson, the principal of LRG, Brown and Green provided this document as an example of the one to be executed when the premises were ready for occupancy. A second version of Exhibit E, again signed only by Brown and Green, has lease term dates of May 15, 2004, to May 14, 2009. A third version of Exhibit E was executed in early 2006, after LRG had assumed the lease from Lil’ River. This third version, still bearing the signatures of Brown and Green but also initialed by Johnson and Linda Campbell, a Lawrenceville representative, contains corrections of the previous dates to a lease term of May 15, 2005, to May 14, 2010.

A certificate of occupancy for the premises did not issue until May 17, 2005. Lil’ River took possession of the property on May 15. Lil’ River began paying rent in August 2005, which was consistent with a May 2005 commencement date as well as a lease provision that the first three months of rent were waived. From May 15, 2005 to May 16, 2006, Lil’ River paid rent of $72,250 — that is, the lease’s base rent for Year 1 of $102,000 less $29,750 of waived rent.

On September 30, 2005, and with Lawrenceville’s consent, Lil’ River assigned the lease to LRG Group. In the assignment, Lil’ River agreed “that the Landlord [Lawrenceville] and Assignee [LRG] may change, modify[,] or amend the Lease in any way, including the rental to be paid thereunder, and that further assignments may be made, without notice to or consent of Assignor [Lil’ River].” Brown signed the assignment as both Lil’ River’s representative and as the “Personal Guarantor” of “Assignor’s obligations.”

On the same day, all three parties, including LRG as Lil’ River’s assignee, agreed to an amendment of the lease with new requirements including that Lil’ River provide Lawrenceville with quarterly financial reports and a $500 late fee for rent paid after the fifth of each month. Brown also signed the amendment, which contained a provision that “Tim Brown will continue to personally guarantee the Lease until such time as other entities provide a personal guarantee of the Lease that meets the approval of [Lawrenceville].”

LRG began falling behind in its payments in 2007 and defaulted in May 2008. Lawrenceville repossessed the property and sued Brown for damages and fees. In the course of discovery, Brown admitted that he had “unconditionally guaranteed the performance by LRG Group, Inc. of all of its obligations and liabilities under the Lease, [and] agreed to pay [Lawrenceville] the rent or any arrears thereof and all damages that may arise in consequence of any default by [LRG] under the Lease,” including “reasonable attorney fees.” After both parties moved for summary judgment, the trial court granted Lawrenceville’s motion concerning Brown’s affirmative defense of novation in the amount of $171,485.70, including $22,367.70 in attorney fees, but denied Lawrenceville’s motion concerning its claim for stolen equipment in the amount of $70,245.21.

1. Brown first argues that the trial court erred when it concluded that the parties’ various corrections of the lease term from May 2005 to May 2010 did not amount to a novation or otherwise invalidate his guarantee. We disagree.

“ ‘The construction which will uphold a contract in whole and in every part is to be preferred, and the whole contract should be looked to in arriving at the construction of any part.’ OCGA § 13-2-2 (4).” Town Center Assoc. v. Workman, 227 Ga. App. 55, 57 (1) (487 SE2d 624) (1997). Guarantees “are to be taken as strongly against the party giving the guarantee, as the sense of them will admit.” (Citation and punctuation omitted.) Id. at 58 (1); see also OCGA § 13-2-2 (5).

In every novation there are four essential requisites: (1) a previous valid obligation, (2) the agreement of all the parties to the new contract, (3) the extinguishment of the old contract, [and] (4) the validity of the new one. If these essentials, or any one of them, are wanting, there can be no novation.

(Citation and punctuation omitted.) M. W. Buttrill, Inc. v. Air Conditioning Contractors, 158 Ga. App. 122, 124 (279 SE2d 296) (1981).

Here, the trial court properly looked to evidence extrinsic to the December 2004 lease to reconcile the conflict between its apparent term (April 2004 to April 2009) and its simultaneous requirement that the parties execute Exhibit E in order to set not only the rent commencement date, but also “reciting the exact Commencement Date and termination date of the original Lease Term.” (Emphasis supplied.) Brown’s own evidence shows that his agent initialed the correction of the occupancy date to June 1, 2005, and it is clear from the conduct of the original parties through September of that year, including Lil’ River’s failure to insist on the completion of Exhibit E at any point before or after its first rent payment in August, that they had reached agreement concerning both the rent commencement date and the lease term. See C. L. D. F., Inc. v. The Aramore, LLC, 290 Ga. App. 271, 273 (1) (659 SE2d 695) (2008) (trial court did not err in correcting an obvious contractual error and in enforcing a guaranty against the guarantor as a matter of law); M. W. Buttrill, 158 Ga. App. at 124 (3) (a) (lack of evidence that original contract had been extinguished meant that novation could not have occurred).

Decided May 6, 2011.

Michael J. Anderson, for appellant.

Webb, Tanner, Powell, Mertz & Wilson, Anthony O. L. Powell, Melody A. Glouton, for appellee.

2. Brown also argues that the assignment and amendment amounted to a novation such that he was released from his obligations. Again, we disagree.

“Contemporaneous written agreements are perhaps one of the surest ways to establish the intent of the parties in entering into each of those agreements.” C. L. D. F., 290 Ga. App. at 273 (1).

In the assignment, Brown agreed that LRG and Lawrenceville were free to “change, modify[,] or amend the Lease in any way.” Even assuming that the successor parties actually changed rather than clarified the lease term in the third version of Exhibit E, Brown had ratified such a change in advance. Likewise, even if we were to conclude that the assignment and amendment amounted to a novation, Brown signed both documents as a guarantor, explicitly agreed in the assignment that he would continue to extend that guarantee, and admitted in the course of discovery that he was responsible for any default by LRG. He is therefore liable for that default. See Anderton v. Certainteed Corp., 201 Ga. App. 538, 540 (411 SE2d 558) (1991) (guarantor who “consented in advance to be responsible” for a second note cannot be “discharged as a surety by its execution, even if under other circumstances such a note could be considered a novation”); First Union Nat. Bank of Ga. v. Gurley, 208 Ga. App. 647, 650-651 (2) (431 SE2d 379) (1993) (reversing denial of motion for j.n.o.v. where no question of fact existed concerning the validity of a guarantee; a “mere” lack of consideration is “no legal defense” to liability under it).

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.


author: MCFADDEN, Judge.

text:
    A11A0383.
    OFFICE DEPOT, INC. v. THE DISTRICT AT HOWELL MILL, LLC et al.
    (710 SE2d 685)
   MCFADDEN, Judge.

Office Depot, Inc. sued its landlords, The District at Howell Mill, LLC (the “District”) and ELPF Howell Mill, LLC (“ELPF”) (collectively, “landlords”), for breach of the exclusive-use provision of a commercial lease agreement. It also asked for a declaratory judgment regarding its obligation to pay rent under the lease and/or its authority to terminate the agreement. The landlords counterclaimed for past-due rent, attorney fees, and a declaration that they did not breach the lease. Following discovery, the parties filed cross-motions for summary judgment, and the trial court granted summary judgment to the landlords on all claims.

Office Depot appeals, asserting that questions of fact remain as to breach, that regardless of whether a breach occurred, it is entitled to terminate the lease, and that the trial court erred in awarding attorney fees. Office Depot is precluded from claiming a breach by the terms of an estoppel certificate, which it executed at the time the District sold the shopping center to ELPF and upon which the landlords reasonably relied. Because the landlords did not breach the agreement, Office Depot is not entitled to exercise the lease’s termination clause. Because the lease provides for an award of reasonable attorney fees to the party prevailing in litigation, the trial court did not err in awarding attorney fees to the landlords. Accordingly, we affirm.

Summary judgment is appropriate when the evidence, viewed favorably to the nonmoving party, demonstrates that no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. See OCGA § 9-11-56 (c). Many of the underlying facts in this case are undisputed. On December 27, 2005, Office Depot leased commercial space in a shopping center located on Howell Mill Road in Atlanta. Pursuant to the lease agreement, which at that point was between Office Depot as tenant and the District as landlord, the District agreed to an exclusive-use provision or “Landlord’s Leasing Covenant” that prohibited it from entering into another “lease and/or operating agreement with any person or entity whose primary business, at the time of such lease or operating agreement is executed is the sale, leasing, distribution or display of. . . school supplies.”

Approximately 18 months later, the District leased other property in the shopping center to The School Box. According to its lease, The School Box was to use the premises for

[t]he display and sale at retail of educational supplies for school and home, including, but not limited to student workbook, teacher resource books, home school curriculum, children’s literature, teaching materials in all subjects, classroom decorations, educational toys and games, art and crafts supplies, school supplies, children’s music and videos, software, classroom furniture, inspirational teaching materials and other products normally purchased by schools, teachers and parents of school age children, and for no other use.

The School Box store opened in November 2006 directly across the parking lot from Office Depot.

In May 2007, ELPF agreed to purchase a majority interest in the shopping center from the District. Before entering into that agreement, ELPF asked for an “estoppel certificate” from each shopping center tenant regarding the tenant’s current lease. Office Depot executed its certificate on April 24, 2007, stating, among other things, that “[t]o Tenant’s knowledge, Landlord is not in default in the performance or observance of any of its obligations under any terms or provisions of the Lease.” The purchase transaction closed in June 2007, and the District assigned ELPF a portion of its interest in the tenant leases.

Office Depot subsequently informed the District that the lease to The School Box violated the exclusive-use provision of its lease agreement. By letter dated December 6, 2007, Office Depot gave notice that within 60 days it would commence paying reduced “Alternative Rent” as defined under the lease. Neither the District nor ELPF responded, and Office Depot began paying reduced rent in February 2008.

Over one year later, in May 2009, Office Depot filed its petition for declaratory relief and damages against the District and ELPF. Office Depot sought a declaration that the landlords had breached the exclusive-use provision in the lease agreement, authorizing it to pay reduced rent or terminate the lease. It also requested damages flowing from the breach. The landlords counterclaimed for nonpayment of rent and attorney fees, and the parties filed cross-motions for summary judgment.

Following a hearing, the trial court entered summary judgment for the landlords. It found that, as a matter of law, Office Depot was estopped by its April 2007 estoppel certificate from claiming breach. Concluding that the landlords were not in default, it awarded them past-due rent, interest, attorney fees, and litigation expenses. This appeal followed.

1. The trial court first determined that the April 24, 2007 estoppel certificate precluded Office Depot’s breach of contract claim. We agree. Georgia law recognizes “on grounds of public policy and good faith, the potential estoppel effect that can result from a tenant’s execution of [an estoppel] certificate.” (Citation and punctuation omitted.) Virginia Highland Assoc. v. Allen, 174 Ga. App. 706, 709 (2) (330 SE2d 892) (1985). As we have explained, “[a]dmis-sions which have been acted on by others [ ] are conclusive against the party making them, in all cases, between him and the person whose conduct he has thus influenced.” (Emphasis omitted.) Id. at 708.

At the time Office Depot executed its certificate, The School Box had been in operation for several months, and Office Depot officials had considered whether presence of the store violated its lease. Nevertheless, Office Depot represented to the landlords that no default had occurred. The record further shows that the landlords — and in particular, ELPF — relied on the estoppel certificate in closing the purchase transaction. On appeal, Office Depot notes that ELPF’s investment committee approved the acquisition in late April 2007, before receiving the certificate. A representative from ELPF’s investment advisor testified, however, that the advisor required an estoppel certificate from every major tenant in the shopping center. As part of the advisor’s due diligence, the representative also spoke with the Office Depot store manager, who stated that the store had no problems with the lease or landlord. The investment committee approved the acquisition based on that representation, then sought the estoppel certificate to confirm that there were, in fact, no issues with the lease. Testimony also established that if the estoppel certificate had revealed a possible violation of the Office Depot lease, the sales transaction would not have proceeded as planned. Office Depot has not offered any evidence contradicting this testimony that the transaction closed in reliance on the estoppel certificate.

Alternatively, Office Depot argues that any reliance was unreasonable because the landlords knew that The School Box lease violated Office Depot’s exclusive-use provision. The record, however, shows otherwise.

Prior to the sale, a representative from ELPF’s investment advisor visited The School Box store, spoke with its manager, and reviewed The School Box lease, which listed the display and sale of school supplies as just one of many ways in which The School Box was to use the space. As noted above, an interview with Office Depot’s store manager also revealed no complaints about The School Box. Based on this investigation, ELPF determined that The School Box was not in the “primary business” of displaying or selling school supplies and that its presence in the shopping center did not violate Office Depot’s exclusive-use provision. The District reached a similar conclusion when it originally entered The School Box lease.

Office Depot has pointed to no evidence that the landlords’ judgment in this regard was unreasonable or that the landlords knew Office Depot’s lease had been breached. Accordingly, no issues of fact remain as to the reasonableness of the reliance here. Compare Mark-It Place Foods v. New Plan Excel Realty Trust, 804 NE2d 979, 1001 (Ohio App. 2004) (evidence that new landlord knew about breach raised question of fact regarding reasonable reliance on estoppel certificate); Won’s Cards v. Samsondale/Haverstraw Equities, 566 NYS2d 412, 417 (1991) (same); KPW Assoc. v. S. S. Kresge Co., 535 So2d 1173, 1181 (La. App. 1988) (shopping center purchaser not justified in relying on tenant’s estoppel certificate given knowledge of significant problems with parking lot). Office Depot, therefore, has not raised a question of fact as to the reasonableness of the landlords’ reliance.

Despite the presence of The School Box store in the shopping center, Office Depot executed an estoppel certificate stating that it knew of no defaults in its lease. The landlords reasonably relied on that statement in closing the sales transaction. Under these circumstances, Office Depot is estopped from claiming that the landlords violated the exclusive-use provision by leasing space to The School Box. See Virginia Highland Assoc., supra at 709-710. The trial court, therefore, properly granted summary judgment to the landlords on the breach of contract claim.

2. Office Depot further argues that even if no breach occurred, it is authorized to terminate the lease. In support, it cites Section 11.6 of the lease, which provides:

Breach of Landlord’s Leasing Covenant. In the event Landlord violates “Landlord’s Leasing Covenant” [the exclusive-use provision], Tenant shall have the right beginning sixty (60) days following written notice alleging such violation . . . to pay Alternative Rent. . . until such time as landlord cures such violation. If landlord fails to commence and diligently pursue a judicial action to contest Tenant’s assertion of such a violation within six (6) months of such assertion, then in addition to its other rights at law or in equity, Tenant may terminate this Lease by delivering written notice of such election to Landlord.

(Emphasis supplied.)

Without dispute, the landlords did not bring a judicial action to contest Office Depot’s claim of breach within six months of the allegation. Office Depot thus argued below — and now claims on appeal — that it is entitled to terminate the lease.

“Construction of a written contract is a question of law for the trial court based on the intent of the parties as set forth in the contract, which question we review de novo.” Donchi, Inc. v. Robdol, LLC, 283 Ga. App. 161, 163-164 (1) (a) (640 SE2d 719) (2007). When the language of the contract is clear and unambiguous, we enforce those terms as written, and we will not look to matters outside of the contract. Id. at 164. Moreover, “ ‘[a] contract is not ambiguous, even though difficult to construe, unless and until an application of the pertinent rules of interpretation leaves it uncertain as to which of two or more possible meanings represents the true intention of the parties.’ ” Giles v. Nationwide Mutual Fire Ins. Co., 199 Ga. App. 483, 484 (1) (405 SE2d 112) (1991). Those rules of interpretation require us, among other things, to construe a contract clause in conjunction with its heading to determine the parties’ intent. See Donchi, supra at 164; Giles, supra.

Office Depot’s termination claim focuses on the “assertion of a violation” language in the second sentence of Section 11.6. It argues that even though a breach may not have occurred, it asserted that a breach existed in December 2007, triggering the six-month deadline for the landlords to commence a judicial action. By its clear terms, however, Section 11.6 sets forth remedies available following a breach. The paragraph is entitled “Breach of Landlord’s Leasing Covenant,” and the first sentence authorizes the tenant to pay alternative rent “in the event” of a breach and after proper notice to the landlord. The second sentence then gives the tenant the additional right to terminate if the landlord fails to commence a timely legal action to dispute the assertion of “such a violation,” referring back to the breach discussed in the first sentence.

At base, Office Depot argues that any breach allegation — no matter how wrong or far-fetched — triggers the termination right. A contract, however, must be read reasonably, in its entirety, and in a way that does not lead to an absurd result. See Payne v. Middlesex Ins. Co., 259 Ga. App. 867, 869 (578 SE2d 470) (2003); Tudor v. American Employers Ins. Co., 121 Ga. App. 240, 242 (1) (173 SE2d 403) (1970). The construction suggested by Office Depot brings the termination right into play regardless of the merit or absurdity of the breach claim. Section 11.6 cannot be reasonably construed in this manner.

Read in its entirety and in conjunction with its title, the paragraph allows a tenant to terminate its lease if the landlord fails to commence a judicial proceeding to contest a breach allegation when there is, in fact, a breach. Simply put, the termination right does not arise if there is no breach. And as we have already found, the landlords are entitled to summary judgment on Office Depot’s breach claim. Accordingly, Office Depot cannot terminate pursuant to Section 11.6.

3. Finally, Office Depot argues that the trial court erred in awarding attorney fees and expenses to the landlords. In its order, the trial court concluded that the landlords were entitled to recover fees and expenses, but it made no finding as to the amount of the award. Instead, it directed that a hearing be held in the future at which the landlords would be required to “present proof of these items.”

Decided May 6, 2011.

Shapiro, Fussell, Wedge & Martin, Robert B. Wedge, for appellant.

Eric C. Lang, Patricia F. Ammari, William J. Dawkins, for appellees.

We find no error. Pursuant to Office Depot’s lease agreement, the “prevailing party” in any litigation to enforce a right or collect sums due under the lease may recover reasonable attorney fees and litigation expenses. The trial court awarded fees and expenses after concluding that the landlords were the prevailing parties here. Although Office Depot challenges this designation, we have already determined that the trial court properly granted summary judgment to the landlords on the breach and termination claims. Office Depot also has not demonstrated the trial court erred in awarding the landlords past-due rent. The landlords clearly prevailed in this litigation. See Realty Lenders v. Levine, 286 Ga. App. 326, 330 (2) (649 SE2d 333) (2007).

Office Depot further argues that OCGA § 13-1-11 limits the attorney fees and litigation expenses that may be recovered by the landlords. The trial court, however, has not determined the amount of fees and expenses to be awarded. It deferred that question for a future hearing, at which the parties can present evidence and argument. Accordingly, because the trial court has not yet ruled on the amount of fees and expenses to be awarded, we will not address the OCGA § 13-1-11 issue or “render an advisory opinion thereon.” Sosebee v. McCrimmon, 228 Ga. App. 705, 710 (2) (492 SE2d 584) (1997). See also Tackett v. Ga. Dept. of Corrections, 304 Ga. App. 310, 313 (2) (696 SE2d 359) (2010) (“ ‘This court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.’ ”).

Judgment affirmed.

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


author: SMITH, Presiding Judge.

text:
    A11A0444.
    HILL v. THE STATE.
    (710 SE2d 667)
   SMITH, Presiding Judge.

In this case of first impression, we are called upon to interpret the provisions of OCGA § 17-7-50.1 (a), establishing a time limit for the presentment of a juvenile’s case to a grand jury in superior court. Because the State failed to meet the time limit for presenting the case to the grand jury, the case should have been returned to the juvenile court. The superior court as a result lacked jurisdiction to entertain a guilty plea, and we therefore vacate the judgment of conviction and remand for transfer to the juvenile court.

During a confrontation arising from a personal quarrel, Jeremi Hill fired a shotgun at two individuals, wounding them both with buckshot. On July 16, 2009, Hill was detained on a juvenile complaint and committed to a detention center. A petition of delinquency was filed in the juvenile court on July 20, 2009, alleging that Hill committed acts that would, in the case of an adult, constitute two counts of aggravated assault, one count of possession of a firearm during the commission of a felony, and one count of possession of a firearm by an underage person. On November 25, 2009, the juvenile court entered an order nunc pro tunc November 13, 2009, transferring Hill’s case to the superior court, finding after a review of his extensive history of delinquency:

[I]t is apparent to the Court that the child is a danger to the community and is not amenable to treatment and rehabilitation in the juvenile justice system. His offenses are becoming more violent and he has not been successfully corrected through the resources available in the juvenile justice system. . . .
Because of the very egregious nature of this offense and the child’s past record of failure in the juvenile justice system, the interest of the child to be treated in the juvenile justice system is outweighed by the rights of the community to have this case tried in Superior Court.

(Citations omitted.)

Hill was not indicted in the superior court until April 20, 2010. He immediately moved to return his case to juvenile court on the basis of OCGA § 17-7-50.1, arguing that he had not been indicted within 180 days of detention as provided by the statute. The trial court denied Hill’s motion without comment and denied Hill’s request for a certificate of immediate review. Thereafter, Hill pled guilty to one count of aggravated assault. He appeals from the judgment of sentence and conviction, asserting that the trial court lacked jurisdiction and should have granted his motion to transfer. We agree.

OCGA § 17-7-50.1 provides in relevant part:

§ 17-7-50.1. Time for presentment of child’s case to a grand jury; exception
(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-28 or 15-11-30.2, who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. The superior court shall, upon motion for an extension of time and after a hearing and good cause shown, grant one extension to the original 180 day period, not to exceed 90 additional days.
(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.

In interpreting a statute, we must give effect to the legislature’s intention, looking “diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

To determine the legislative intent of a statute, we begin with the literal text; where the literal text of a statute is plain and does not lead to absurd or impracticable consequences, we apply the statute as written without further inquiry. The language of a statute is given its most natural and obvious import, without resorting to forced or subtle interpretations to either expand or limit the statute’s operation. We interpret a statute to give effect to the real legislative intent and meaning, however, and not so strictly as to defeat the legislative purpose.

(Citations and punctuation omitted.) Spivey v. State, 274 Ga. App. 834 (1) (619 SE2d 346) (2005). In the case of a criminal statute, if it “is open to more than one reasonable interpretation, it must be construed strictly against criminal liability, and in favor of the individual facing criminal liability.” (Citation omitted.) Id. at 834-835.

The plain language of the statute provides that a child within superior court jurisdiction “shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury.” (Emphasis supplied.) The statute further provides that the case “shall he transferred to the juvenile court” if an indictment is not obtained within the specified time. (Emphasis supplied.)

Here, Hill was not indicted until approximately 300 days after his detention began. Under the plain language of the statute, it was mandatory that the case be transferred back to the juvenile court. OCGA § 17-7-50.1 (b). The superior court therefore erred in denying Hill’s motion to transfer. And because the case should have been transferred, the superior court also erred in accepting Hill’s subsequent guilty plea, made only after his request for a certificate of immediate review was denied.

While the State has not raised the issue, we also consider whether Hill’s guilty plea waived his jurisdictional claim and conclude that it did not. A guilty plea can waive the right to appeal certain issues, such as the denial of a motion to suppress. Covin v. State, 272 Ga. App. 65, 67 (2) (611 SE2d 729) (2005). But even an unconditional plea of guilty cannot waive a jurisdictional issue:

[A] plea of guilty generally waives all defenses or objections, known or unknown, other than an appellate issue of whether the plea was voluntarily made and accepted, and in strictly limited circumstances, appellants may go behind the plea to show some supervening illegality of overwhelming proportions. This exception concerns errors that go to the very power of the state to bring the defendant into court to answer the charge brought against him. As recognized in Blackledge v. Perry, 417 U. S. 21, 30 (94 SC 2098, 40 LE2d 628) [(1974)], an unconditional guilty plea does not preclude appeal of a claim of error grounded upon the right not to be haled into court at all, that is, jurisdictional and generally double jeopardy-type errors.

(Citations and punctuation omitted.) Hooten v. State, 212 Ga. App. 770-771 (1) (442 SE2d 836) (1994). Because the superior court lacked jurisdiction to enter its judgment on Hill’s guilty plea, his claim under OCGA § 17-7-50.1 was not waived and the judgment of conviction on his plea should be vacated. Cf. State v. Sullivan, 237 Ga. App. 677 (516 SE2d 539) (1999) (indictment properly quashed when jurisdiction not in superior court due to delayed entry of transfer order).

The State, citing no case law, contends that the 180 days should be counted from the date of transfer to the superior court rather than the date of detention. It argues that, as Hill’s crime was not within the jurisdiction of the superior court until the juvenile court entered its transfer order, it therefore had 180 days from the date of transfer to obtain an indictment. But the statute plainly adopts the date of detention, not the date of transfer, as the point from which the time is calculated, and it explicitly applies whether the child is initially subject to the jurisdiction of the superior court through committing an enumerated offense, OCGA § 15-11-28, or via a transfer to superior court after a petition and hearing, OCGA § 15-11-30.2. OCGA § 17-7-50.1 (a). The General Assembly thus was aware of the transfer process at the time it enacted the statute; and “statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law. ...” (Citations and punctuation omitted.) Burke v. State, 274 Ga. App. 402, 404 (2) (618 SE2d 36) (2005).

Decided May 6, 2011.

Sutherland, James R. McGibbon, Kurt E. Lentz, Stephen M. Reba, for appellant.

Howard Z. Simms, District Attorney, John A. Regan, Assistant District Attorney, for appellee.

The State, again citing no law, further argues that this interpretation will prevent cases from being transferred to superior court when the juvenile court’s decision on a transfer is delayed due to psychiatric evaluation and other investigations required by the transfer statute. But that hypothetical circumstance is irrelevant here. Under the plain language of the statute, the State had an additional 60 days in which to seek an indictment following the transfer to superior court. Moreover, the State acknowledged at oral argument that it could have applied for a 90-day extension of time under OCGA § 17-7-50.1 (a) as soon as the case was transferred to the superior court. That would have provided 150 days or approximately five months for the grand jury to consider Hill’s case. But the State failed to seek an extension and cannot now complain that it was prevented from obtaining an indictment by any delay on the part of the juvenile court or even by any reluctance on the State’s part to seek an indictment before jurisdiction was established in the superior court.

The superior court lacked jurisdiction at the time Hill was indicted, and we therefore must vacate the judgment of conviction and sentence and remand with direction that the superior court transfer the case to the juvenile court in accordance with the provisions of OCGA § 17-7-50.1 (b).

Judgment vacated and case remanded with direction.

Mikell and Dillard, JJ., concur.


author: Smith, Presiding Judge.

text:
    A11A0469.
    THE STATE v. ROUSE.
    (710 SE2d 670)
   Smith, Presiding Judge.

The State appeals from the trial court’s grant of Jemeril Rouse’s motion to suppress marijuana found in his vehicle following a traffic stop. Because the trial court employed an incorrect legal standard, we vacate the judgment and remand this case.

There are three fundamental principles which must be followed when reviewing a motion to suppress.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant. . . .

(Citation, punctuation and footnote omitted.) Miller v. State, 288 Ga. 286, 286-287 (1) (702 SE2d 888) (2010).

“To properly follow the first principle, we must focus on the facts found by the trial court in its order, as the trial court sits as the trier of fact.” Id. The trial found the following facts: Officers Stowe and Broce were parked in the median on 1-20 when one of the officers observed Rouse traveling in the right lane following a tractor trailer too closely and changing lanes without signaling. The officers stopped Rouse and requested his driver’s license and insurance documents. Officer Broce ordered Rouse to step out of the vehicle, and Rouse complied. Broce then engaged Rouse in conversation by asking Rouse where he was coming from. Broce asked Rouse if he had any illegal drugs in the vehicle, and Rouse stated that he did not. When Broce asked for consent to search the vehicle, Rouse refused.

The trial court found further:

According to Officer Stowe, [Rouse] appeared nervous. Though never referenced in the police incident report, nor any supplemental report submitted by either officer, Officer Broce testified in court that he smelled a faint odor of unburned marijuana coming from the vehicle prior to the K-9 free air search being conducted. Officer Broce then got his K-9 out of the patrol car and walked it around the vehicle; where it purportedly alerted on the driver’s door of [Rouse’s] vehicle. The vehicle was subsequently searched; where marijuana was found located inside the trunk of the vehicle, packaged inside a cardboard box with packing tape sealing it.

Following the hearing, the trial court orally granted the motion and instructed defense counsel to “[d]raw me an order.” The court stated further that it would “particularize the order.” In the order granting the motion to suppress, the trial court concluded:

Even if the initial stop had been authorized, the defendant’s further detention to conduct the dog search was not reasonable. . . . An officer who questions and detains a suspect for other reason[s] exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity. . . . This Court must further decide the credibility of witnesses and the evidence including reconciling the lack of prior assertions of the odor of marijuana. Reasonable suspicion to detain and investigate for illicit drug activity does not arise from nervousness alone. . . . Under the totality of the circumstances, there are no specific and articu-lable facts which support a particularized and objective basis for suspecting the defendant of criminal activity. The detention of the defendant to conduct the dog search was not reasonable.

Although the trial court apparently found Broce’s testimony that he smelled marijuana not credible, the officers were permitted to use the drug sniffing dog in the absence of any suspicion of illegal activity as long as it did not unreasonably prolong an otherwise valid stop. See Bowens v. State, 276 Ga. App. 520, 522 (623 SE2d 677) (2005) (reasonable suspicion not required before an officer may use a canine trained in drug detention). It is well settled that

[t]he use of a drug sniffing dog to conduct a free air search around the exterior of a vehicle during the course of a lawful traffic stop does not implicate the Fourth Amendment under the United States Constitution. . . . [0]ur law is . .. clear that it is permissible to conduct an open air search around a vehicle while a traffic stop is still in progress so long as the stop has not been unreasonably prolonged for the purpose of conducting the search.

Decided May 6, 2011.

Layla H. Zon, District Attorney, Candace K. Slezak, Assistant District Attorney, for appellant.

Careton R. Matthews, for appellee.

(Citations and punctuation omitted.) Langston v. State, 302 Ga. App. 541, 544 (691 SE2d 349) (2010). “The question is whether the prolongation is reasonable or unreasonable. On this issue we should defer to the trial court unless the facts are truly egregious.” (Citations and footnotes omitted.) Hayes v. State, 292 Ga. App. 724, 729 (2) (665 SE2d 422) (2008). While we accept the trial court’s decision with regard to questions of fact and the officers’ credibility, it is apparent from the court’s order that it concluded the K-9 free air sniff was not reasonable because officers had no reasonable suspicion of illegal activity. But reasonable suspicion is not required for a free air sniff. See Bowens, supra.

Because the trial court misapplied the law, we vacate the trial court’s judgment and remand this case for the trial court to apply the correct legal standard to its facts. See, e.g., State v. Folsom, 285 Ga. 11, 13 (1) (673 SE2d 210) (2009).

Judgment vacated and case remanded.

Mikell and Dillard, JJ., concur.


text:
    A11A0654.
    WILCOX v. THE STATE.

      (711 SE2d 67)

   SMITH, Presiding Judge.

Edward Loyldell Wilcox was convicted of rape, aggravated sodomy, and burglary. His motion for new trial was denied, and, in this out-of-time appeal, he asserts the general grounds and ineffective assistance of counsel. Finding no error, we affirm.

1. The elderly victim, who lived next door to Wilcox and knew him as “Ed,” identified him to the police and at trial as the man who broke into her house, raped her, and forced her to perform oral sex on him. “[T]he testimony of the victim alone was sufficient to support the jury’s verdict of guilt.” Sims v. State, 275 Ga. App. 836, 838 (1) (621 SE2d 869) (2005). As in Sims, the victim’s positive identification of her assailant would have been sufficient, but the State also presented corroborating testimony from police officers, as well as a nurse and physician who treated the victim and testified to her injuries. “This evidence was sufficient to satisfy the test in Jackson v. Virginia.” (Citation omitted.) Id.

2. Wilcox alleges ineffective assistance on the part of his trial counsel in three respects: that counsel stipulated to crime lab results regarding a pair of jeans found in his residence; that counsel failed to file a motion to suppress with respect to the jeans; and that counsel failed to object to testimony from a physician and nurse. We find, however, that Wilcox has failed to show ineffective assistance in any of these respects.

Under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a defendant alleging ineffective assistance of counsel must show first that his counsel’s performance was deficient, and second, that counsel’s deficient performance prejudiced his defense. If the appellant fails to meet his burden on one prong of this test, we need not address the other prong. In addition, a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance. A trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations and punctuation omitted.) Robison v. State, 277 Ga. App. 133, 136 (3) (625 SE2d 533) (2006). For the reasons stated below, we find that the trial court’s determination that Wilcox received effective assistance of counsel was not clearly erroneous, particularly in light of the fact that the jury acquitted Wilcox of the charge of aggravated sexual battery. Wilson v. State, 306 Ga. App. 827, 832 (2) (b) (703 SE2d 400) (2010).

(a) Wilcox first complains that his trial counsel was ineffective in stipulating that the blood found on a pair of jeans in Wilcox’s home was that of the victim. Trial counsel testified at the motion for new trial that he had a strategic reason to stipulate to the DNA evidence, although he could not specifically recall the reason. He added, “I would like to think that perhaps it enamors me in some way to the jury so they don’t have to sit through an hour-and-a-half long testimony about DNA evidence.” At trial, counsel argued to the jury that the jeans had been contaminated by the victim’s blood when an officer brought them from Wilcox’s house to the crime scene. He established that an officer moved the jeans, and that there was a considerable amount of blood in the victim’s home. He elicited admissions from the crime scene investigator that the officer’s conduct in moving the jeans into a crime scene was improper and had the potential to contaminate the evidence. Stipulating to the identity of the blood on the jeans was entirely consistent with counsel’s argument that the blood was contamination caused by the police officer’s conduct rather than blood transferred to Wilcox’s pants at the time of the crime. “Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result.” (Citation, punctuation and footnote omitted.) Hazelrigs v. State, 255 Ga. App. 784, 786 (2) (567 SE2d 79) (2002). Entering into the stipulation therefore was a reasonable trial strategy that did not amount to deficient performance. See Moore v. State, 274 Ga. App. 432, 436 (2) (a) (618 SE2d 122) (2005).

(b) Wilcox next argues that his trial counsel was ineffective in failing to file a motion to suppress the jeans. At the hearing on the motion for new trial, trial counsel testified:

I researched the issue, and in my professional judgment, the victim had been subjected to a brutal and horrible rape and aggravated sodomy. She made an outcry immediately, said it was the next-door neighbor, the police were on the scene immediately, they found blood between the two homes, and in my mind that constituted exigent circumstances, and just as matter of my practice, [I] do not file blanket, frivolous, in my mind, motions.

Trial counsel’s assessment of the law is correct. “A law enforcement officer may make a legally permissible warrantless entry into a residence when exigent circumstances exist.” (Citation omitted.) State v. Peterson, 273 Ga. 657, 659 (2) (543 SE2d 692) (2001).

Exigent circumstances may be found where police reasonably perceive an emergency involving a threat to life or property, or where an officer is in hot pursuit of a fleeing felon, where an officer reasonably fears the imminent destruction of evidence if entry into the residence is not immediately effected, and where an officer reasonably perceives that a suspect within the dwelling poses a risk of danger to the police or others.

(Citation and punctuation omitted.) James v. State, 294 Ga. App. 656, 658-659 (670 SE2d 181) (2008). In James, a rape victim reported that the perpetrator was inside a home. The front door was open, no one responded to police officers’ calls from the front door, and the police were concerned that the perpetrator was dangerous and that evidence might be destroyed. Id. at 657. We concluded that this was “a situation where quick action was required,” and affirmed the trial court’s denial of James’s motion to suppress. Id. at 661.

Decided May 6, 2011.

Jonathan P. Waters, for appellant.

Howard Z. Simms, District Attorney, Nancy S. Malcor, Dorothy V. Hull, Gregory W. Winters, Assistant District Attorneys, for appellee.

Here, the victim told an officer immediately after the incident that her neighbor, Ed, had raped her and that he had gone next door. The officer called for backup because “[t]he suspect was possibly still next door.” When officers investigated, they found both the front and back doors of Wilcox’s house open, knocked and received no answer, and entered the home. An officer testified that it was “important to detain the suspect for the safety of the neighborhood.” These exigent circumstances justified the warrantless entry, and “failure to make a meritless objection cannot be evidence of ineffective assistance of counsel.” (Citation and footnote omitted.) Thomas v. State, 306 Ga. App. 279, 281-282 (3) (a) (701 SE2d 895) (2010). Trial counsel’s performance therefore was not deficient.

(c) Finally, Wilcox asserts as ineffective trial counsel’s failure to object to hearsay testimony from the treating physician and nurse that the victim identified him as her attacker. As trial counsel noted during the hearing on the motion for new trial, the victim had already testified at trial and identified Wilcox as her assailant, and was cross-examined by trial counsel on this point. Her prior consistent statements therefore were admissible. Watson v. State, 214 Ga. App. 650, 651 (1) (448 SE2d 718) (1994). Trial counsel was not deficient in failing to make a meritless objection. Thomas, supra.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       The jury acquitted Wilcox of aggravated sexual battery.

       Wilcox’s original appeal was dismissed by order because his notice of appeal was untimely (Case No. A10A1544, decided April 14, 2010).


author: McFadden, Judge.

text:
    A11A0695.
    PRESCOTT v. THE STATE.
    (710 SE2d 672)
   McFadden, Judge.

Richard Jerome Prescott appeals his child molestation conviction. He argues that no competent evidence showed that the victim was under the age of 16 and that the state failed to prove venue. We conclude that testimony proved the victim’s age but that the state failed to prove venue. Therefore, we reverse.

The indictment charged Prescott with aggravated child molestation for committing sodomy with the victim, who was under the age of 16. A jury found Prescott not guilty of aggravated child molestation but guilty of the lesser included offense of child molestation. The trial court sentenced Prescott to fifteen years, five years to serve and ten years probation. The court denied Prescott’s motion for new trial, and he filed this appeal.

1. When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that the incident occurred during a basketball game at Screven County High School. Prescott, a student at the school, and the victim were in a stall in the boys’ bathroom. Another student testified that he saw Prescott’s penis in the victim’s mouth.

Mary Robbins, a probation worker with the Georgia Department of Juvenile Justice, testified that she was familiar with the victim, that she spoke with the victim about the incident, and that the victim was 13 years old at the time of trial. The victim told Robbins that she went into the boys’ bathroom to be alone with another boy, and her cousins forcibly removed her. The victim admitted to Robbins that Prescott’s penis was in her mouth. The victim did not testify at trial.

Proof that the victim was under the age of 16 is an essential element of the crime of child molestation under OCGA § 16-6-4 (a). Terrell v. State, 245 Ga. App. 291, 292 (1) (536 SE2d 528) (2000). Prescott contends that the only evidence of the victim’s age, Robbins’s testimony, was inadmissible hearsay. “Where a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being incompetent or insufficient.” Willingham v. State, 296 Ga. App. 89, 90 (673 SE2d 606) (2009). See also Floyd v. State, 100 Ga. App. 453 (1) (112 SE2d 171) (1959) (“Unless it affirmatively appears that evidence is hearsay, and where it is of such a nature that it is possible for the witness who testifies thereto to personally know thereof, it ought not to be excluded.”).

Here, it does not affirmatively appear that Robbins’s testimony was based on hearsay rather than personal knowledge, and during the trial Prescott did not contest the fact that the victim was under the age of 16. Under these combined circumstances, Robbins’s testimony was sufficient to allow a rational trier of fact to find beyond a reasonable doubt that the victim was under the age of 16. Willingham, supra.

Decided May 6, 2011

Robert L. Persse, Stuart H. Patray, William D. Hoffer, for appellant.

2. Prescott also argues that the state failed to prove venue. The only testimony about the location of the incident was that it occurred at Screven County High School. No witness testified that Screven County High School is in Screven County.

The Georgia Constitution requires that “all criminal cases shall be tried in the county where the crime was committed.” Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. The Supreme Court has therefore held that “venue is a jurisdictional element of every crime that the [s]tate must prove beyond a reasonable doubt.” (Citation and punctuation omitted.) Thompson v. Brown, 288 Ga. 855 (708 SE2d 270) (2011).

Because there was no evidence that Screven County High School is located in Screven County, the state did not establish the county in which the crime occurred, it failed to prove venue beyond a reasonable doubt, and the evidence is insufficient to support the conviction. Jones v. State, 272 Ga. 900, 901-902 (537 SE2d 80) (2000); Robinson v. State, 260 Ga. App. 186, 187 (581 SE2d 285) (2003).

We understand that all the participants in [Prescott’s] trial — the members of the jury, the judge, the prosecutor, defense counsel, and [Prescott] himself — may have known from their daily lives in and around [Screven] County that the [high school] lies in that county, making venue . . . seem obvious to them. Nevertheless, that fact is not established by the trial record, and defendants may not be convicted of crimes based on extra-judicial knowledge rather than evidence of such essential facts admitted at trial. We have noted before that, in light of the ease with which venue generally can be proved, it is difficult to understand why the appellate courts are repeatedly faced with the issue. [Cit.]

(Punctuation omitted.) Thompson, supra at 857. We observe that double jeopardy concerns do not bar the retrial of Prescott. Jones, supra.

Judgment reversed.

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

Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.


author: Doyle, Judge.

text:
    A11A0132.
    RIVERA v. THE STATE.
    (710 SE2d 694)
   Doyle, Judge.

Deborah Rivera appeals from her conviction for committing two counts of DUI (less safe) and one count of failure to maintain her lane. She contends that the evidence was insufficient to prove (1) that she was a less safe driver and (2) that venue was proper. Because the evidence authorized a rational trier of fact to conclude that Rivera was guilty and that venue was proper, we affirm.

When reviewing the sufficiency of the evidence,

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

So viewed, the evidence shows that while an officer was on patrol at approximately 9:00 p.m., he encountered an oncoming vehicle, driven by Rivera, crossing over the center line and forcing him off the road. By the time the officer was able to turn around and catch up to the vehicle to initiate a traffic stop, Rivera had already pulled over to speak to a second officer by the side of the road. The first officer listened to their conversation and did not investigate further, assuming that Rivera was lost and that her erratic driving was due to distraction while navigating. Shortly thereafter, when the first officer resumed his patrol, he again encountered Rivera one car ahead of him driving five to ten miles per hour below the posted speed limit, braking for no reason, and weaving in and out of her lane numerous times. Based on Rivera’s continued dangerous driving, the officer initiated a traffic stop.

Despite the officer’s direction to pull to the side of the road, Rivera stopped in the middle of the road. As the officer asked Rivera for her driver’s license and proof of insurance, he noticed that her speech and movements were slow, she seemed unaware of food running down the front of her shirt, and she allowed her car to drift forward as they spoke, requiring the officer to tell her to put her foot on the brake and put the transmission in “park.” The second officer soon arrived, and after Rivera admitted having taken ativan, the officer administered walk-and-turn and one-leg-stand field sobriety tests. Rivera exhibited clues of impairment on both tests, and she was arrested for DUI. She consented to a blood test, which returned positive results for lorazepam, zolpidem, and mirtazapine.

Rivera was charged with two counts of DUI (less safe) based on the lorazepam and zolpidem in her blood and one count of failure to maintain her lane. She was convicted on all three counts, giving rise to this appeal.

1. Rivera contends that the evidence was insufficient to show that she was less safe to drive due to the influence of drugs. We disagree.

OCGA § 40-6-391 (a) provides as follows: “A person shall not drive or be in actual physical control of any moving vehicle while: . . . (2) Under the influence of any drug to the extent that it is less safe for the person to drive.” At trial, the evidence showed that Rivera tested positive for the presence of three prescription drugs shortly after she was seen driving erratically by the arresting officer. There was testimony that two of the drugs were central nervous system depressants and that the combination of all of the drugs would have an additive effect detrimental to safe driving. The arresting officer testified that Rivera’s driving was unsafe in that she ran him off the road, repeatedly wove in and out of her lane, drove below the speed of traffic, stopped her car in the middle of the road, and failed to keep it from idling away as he spoke to her. Rivera’s eyes appeared glassy, her speech and movements were slow, and she exhibited signs of impairment during each of two field sobriety tests designed to detect drug impairment. This evidence was sufficient to authorize a rational trier of fact that she was impaired due to the drugs in her system such that she was less safe to drive.

Decided May 9, 2011

Benjamin A. Davis, Jr., for appellant.

Fredric D. Bright, District Attorney, for appellee.

2. Rivera also contends that the evidence was insufficient to prove venue was proper in Jasper County, where she was tried. This is belied by the record, however, which contains repeated testimony from the arresting officer that he observed Rivera commit the offenses in Jasper County. Therefore, this enumeration is without merit.

Judgment affirmed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 40-6-391 (a) (2).

       OCGA § 40-6-48 (1).

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

       See Duncan v. State, 305 Ga. App. 268, 270 (1) (699 SE2d 341) (2010) (“In determining whether a driver is impaired by alcohol or other substances, the manner of his driving may be considered as a factor if there is evidence that he has consumed alcohol or drugs.”); Key v. State, 289 Ga. App. 317, 322 (2) (657 SE2d 273) (2008) (“The testimony of a trained police officer that an individual is impaired and a less safe driver, based on his observations at the scene, is admissible as direct evidence against the defendant.”); Walczak v. State, 259 Ga. App. 140, 143 (2) (575 SE2d 906) (2003) (“Evidence as to the manner of driving may be taken into account where there is evidence that the defendant is DUI for the purpose of determining whether or not his manner of driving shows him to have been affected by the intoxicant to the extent that he drives less safely and carefully than he might otherwise have done.”) (punctuation omitted).

       See Corbin v. State, 305 Ga. App. 768, 769 (1) (700 SE2d 868) (2010) (“The testimony of a single witness is generally sufficient to establish a fact.’’) (punctuation omitted; quoting OCGA § 24-4-8).


author: MlKELL, Judge.

text:
    A11A0318.
    STEED v. THE STATE.
    (710 SE2d 696)
   MlKELL, Judge.

Ellery Myron Steed, pro se, appeals from the denial of his motion for new trial following his conviction by a Cobb County jury of driving under the influence of alcohol (less safe), driving with a suspended license, and improper lane change. Prior to trial, Steed pled guilty to driving while in possession of an alcoholic beverage in an open unsealed container.

“On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [Steed] no longer enjoys a presumption of innocence.” So viewed, the evidence was that, on July 11, 2009, at approximately 2:30 a.m., Marietta Police Officer Steven Miller was on patrol when he pulled up to a red light behind the automobile being driven by Steed. Steed was in the left of two left turn lanes; there were two motorcycles in front of Steed; and a Metro Ambulance was in the right lane next to Steed. As the light turned green, Steed accelerated and pulled in front of the ambulance without using his turn signal. The ambulance blew its horn and had to slow down rapidly. Miller activated his blue lights and pulled Steed over for the improper lane change. Miller identified himself and asked Steed for his driver’s license. Steed fumbled with his wallet momentarily and then told Miller that his driver’s license was suspended out of North Carolina.

Miller, who, in addition to his regular training, had taken extensive additional training to be recognized as a drug recognition expert and traffic accident reconstruction expert, recognized the odor of alcohol coming from Steed and noticed that his eyes were watery and bloodshot. Miller inquired if Steed had been drinking, and Steed said that he had been at a club and had had three drinks. Miller asked Steed to get out of his car and proceeded to conduct field sobriety tests, beginning with the horizontal gaze nystagmus test. According to Miller, Steed exhibited six of six clues indicating intoxication on this test. On the walk and turn test, Steed exhibited four of eight clues; on the one legged stand, Steed exhibited no clues. At this point, Miller administered the alco-sensor test, but did not get a reading on the first administration. On the second administration, Steed registered positive for alcohol and, after finishing this test, Steed asked if he had passed. At this point, based on his observations, Miller arrested Steed for being less safe to drive and read him his implied consent rights, at which point Steed refused to take the breath or blood test. A second officer arrived to assist Miller, and he searched Steed’s car, finding an open bottle of Bacardi rum on the passenger side floorboard.

1. In his first enumeration, Steed contends that the trial court erred in denying his motion in limine as to hearsay regarding his driving record and irrelevant statements regarding matters surrounding the status of his North Carolina driver’s license.

“[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.”

(a) Steed contends that the trial court’s denial of his motion in limine regarding records not properly authenticated was error. As noted by the trial court, no such records had been put forward at that stage of the trial, and any objections to any such records tendered during trial could be made at that time. There was no error in the trial court’s denying the motion at that point in the trial.

(b) Steed argues that the trial court improperly denied his motion in limine regarding his statements about his license being suspended in North Carolina because that portion of the audio on the dash camera video was unintelligible and the statements were irrelevant.

Admission of a recording of a conversation when part of it is inaudible is in the trial court’s discretion. Steed has shown no abuse of discretion here. Poor audio quality resulting in inaudible portions of a recording can be used to attack the weight and credibility of the recording, but it does not preclude its admissibility. Here, the jury had full opportunity to evaluate whether this portion of the audio, in fact, was inaudible and what weight to give to any discernible statements made by Steed.

Regarding Steed’s statements to Miller about his North Carolina license, under OCGA § 24-3-3, “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” While it is in the discretion of the trial court to determine whether evidence is admissible under the res gestae rule, the question on appeal is “whether the factfinder would be authorized to believe the declarations were made without premeditation or artifice, and without a view to the consequences.”

We find that Steed’s statements regarding his license’s status in North Carolina satisfy this standard and these statements were admissible.

2. Steed’s second enumeration is that the trial court erred in overruling his objection to inflammatory hearsay uttered by Miller on cross-examination.

During Steed’s cross-examination of Miller, the following exchange occurred:

Q. So then the GCIC is not an entity that can issue a driver’s license, reinstate a driver’s license, or suspend a driver’s license? It just collects information as a database?
A. Well the Department of Driver Services does the suspensions.
Q. Right. Not the GCIC. So if — is there anything that you saw in that — in whatever you saw in your computer — there would be nothing that you can say here today that would suggest that my driver’s license, or the suspension of my driver’s license had preceded from a notice sent to me by the Department of Driver Services that my license would be suspended and date —
A. Since —
Q. I’m still asking the question.
A. Yes, sir. I’m sorry.
Q. — and setting a hearing for me to argue against the suspension? None of that would have shown on your computer: is that right?
A. On my computer it shows the current status, and then if there are any suspensions it lists them, what they are for — the violation date, the suspension date, and the service date, if the driver has been served, notice of the suspension. On my terminal, I observed eleven current suspensions and four of them had been served.
MR. STEED: Objection, Your Honor.
THE COURT: You asked the question. You opened the door, Mr. Steed.
[PROSECUTOR]: So if we could have him go ahead and answer his question.
THE COURT: You can finish it, because he interrupted you.
THE WITNESS: On my screen I observed eleven current suspensions and four of them had been served. Some suspensions require actual notice of suspension, and some require service at court.

“Induced error is impermissible. A party cannot claim error where he himself committed or invited the error.”

Steed’s argument that this exchange is reversible error based on Henderson v. State is unavailing. There, the expert on identification of bullets in a murder trial was asked on cross-examination why he did not measure the distance and depths of the grooves on the bullet. The witness responded by stating that the comparison microscope which he had used to examine other characteristics of the bullet “was the highest and best evidence.” The Supreme Court reversed because the answer given was “not only not in response to the question, but was a conclusion of law and a question that only the court could determine.”

“Although one may legitimately complain about illegal testimony which is not responsive to the question, one cannot take chances in propounding questions which may elicit damaging answers, otherwise inadmissible, and then demand a mistrial when such answer is given.”

Here, the answer given was responsive to the question asked and there was no error in the trial court’s overruling of Steed’s objection.

3. Steed contests the legal sufficiency of the evidence of driving with a suspended or invalid license.

The offense of driving with a suspended license is shown by proof that the accused was driving, that his license was suspended, and that the accused had received actual or legal notice of the suspension.

Here, there is no dispute that Steed was driving. Steed’s own statement to Miller provided sufficient evidence that his license was suspended in North Carolina and that he had notice of the suspension. The evidence was legally sufficient to prove that Steed was driving with a suspended license.

4. Steed’s fourth enumeration is that the trial court committed plain error by refusing to allow him to cross-examine Miller using a certified copy of Steed’s driving record from the Georgia Department of Driver Services.

As Steed began his cross-examination by showing Miller a certified copy of his driving record, the trial court instructed him that Miller had nothing to do with the Department of Driver Services and that Steed could introduce the exhibit during his portion of the case if he so chose. Steed voiced no opposition to this procedure and made no objection to not being allowed to cross-examine the officer using this document.

Apparently aware that he failed to raise at trial the objections raised here and therefore may not raise them for the first time on appeal, Steed seeks to avail himself of the “plain error” rule to obtain review. The “plain error” rule, however, applies only “to death penalty cases, and other criminal cases in which the trial court violates OCGA § 17-8-57 [judge expressing or intimating opinion as to what has or has not been proved or as to the guilt of the accused].”

Neither of these is applicable here, and we will not consider this error for the first time on appeal.

5. Steed’s enumerations 5, 6, and 8 all allege violations of OCGA § 17-8-57, and they will be addressed together.

That Code section provides that “[i]t is error for any judge in any criminal case ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused." In order to violate this provision, “the trial court’s comments must pertain to a disputed issue of fact.”

(a) During his opening statement, Steed stated that the field sobriety tests had an accuracy rating of only 65%.

At this point, the trial court stated:

THE COURT: Mr. Steed, I think you’re going into areas that you don’t have any evidence to substantiate. And the State’s not saying anything, but the Court can’t let you continue to do that. I don’t believe you’re going to call any witness that’s going to give that. . . .
MR. STEED: Well, it’s in this manual — it’s in this training manual. The manual he’s trained by says that. And if he’s been trained with it, it should be admissible. I should be able to offer that.

In his fifth enumeration, Steed contends that the trial court’s statement violated OCGA § 17-8-57.

First, we note that

the purpose of the opening statement is to give the jury and the court an outline of the evidence that the party anticipates presenting, whereas the purpose of the closing argument is to recount the evidence presented and suggest the conclusion demanded by that evidence. The trial court has the right and duty to govern the scope of argument both before and after the presentation of evidence, and the proper range of argument is a matter within the [trial] court’s discretion.

We do not find that the trial court’s direction to Steed concerning the content of his opening statement was a comment on what had or had not been proven or his guilt or innocence. Also, Steed continued, following this exchange with the trial court, to argue the issue of the 65% accuracy rate in his opening statement.

(b) In his sixth enumeration, Steed contends that the trial court’s objections to his cross-examination of Miller was plain error and amounted to commenting on the evidence in violation of OCGA § 17-8-57.

Miller, during his direct examination, testified that another officer responded and searched Steed’s car, finding a bottle of Bacardi rum on the passenger floorboard. The officer’s search for, discovery of, and disposal of the contents of the bottle were also on the dash camera video shown to the jury.

During Steed’s cross-examination, the following occurred:

MR. STEED: Officer, I want to go back to your testimony yesterday concerning a bottle of Bacardi that I believe you said your partner had found in the car.
OFFICER MILLER: Yes.
MR. STEED: Now, did you include in your testimony yesterday that that bottle of Bacardi was in a trash bag and a fast food bag?
OFFICER MILLER: No.
THE COURT: Excuse me. Mr. Steed, I’d like for you to move on. You’ve admitted to the open container charge. You’ve pled guilty to the open container charge. That’s really not relevant. Thank you.
MR. STEED: Your honor, it is relevant in the sense that it was testified to during the trial, and I didn’t get a chance to cross-examine on that.
THE COURT: You’ve pled guilty prior to the jury being impaneled. I’d like for you to move on. Thank you.

At this point, Steed voiced no further objection and continued with his cross-examination on other matters.

As acknowledged in his brief, Steed does not dispute that he pled guilty to the open container charge prior to trial. Therefore, the trial court’s statements of this fact were not in violation of OCGA § 17-8-57.

(c) In his eighth enumeration, Steed contends that the trial court erred when it offered objections to relevant evidence even when the state expressly stated that it had no objection and further improperly commented on that evidence in violation of OCGA § 17-8-57.

During the cross-examination of Miller, Steed produced two still photos of him in the back seat of Miller’s patrol car. The state initially objected to them on the ground that Steed had not laid a proper foundation. Following additional questioning of Miller regarding the photos, the state withdrew its objection. The following then occurred:

THE COURT: Well, the difficulty there that I have with that, Mr. Steed, is that that is a different type of medium than what’s up here. And he [Miller] didn’t make that picture. We don’t know how you — where you came about with it.
MR. STEED: [The prosecutor] has no objection.
THE COURT: That was her prior objection. And she —
MR. STEED: She doesn’t have enough.
PROSECUTOR: Your honor, we’ll just argue those in closing.
THE COURT: Okay. All right. Okay, it’s admitted.

We do not find this statement to be a violation of OCGA § 17-8-57. As held by the Supreme Court in reversing Gardner v. State, relied upon here by Steed, the following exchange similarly did not violate the statute:

THE COURT: Prove venue. Did you prove venue?
THE STATE: I have not as of yet.
THE COURT: Why don’t we go ahead and do that before we forget it?

Therefore, we find no error in the trial court’s denial of Steed’s motion for new trial based on violations of OCGA § 17-8-57.

6. In his seventh enumeration, Steed argues that the trial court committed plain error in refusing to permit him to cross-examine Miller as to the odor of alcohol noticed by Miller based on Miller’s own drinking habits.

As stated previously, the plain error rule is applicable only to death penalty cases and alleged violations of OCGA § 17-8-57. Therefore, Steed’s failure to object following the trial court’s finding that his inquiry regarding Miller’s drinking habits was not relevant precludes our review of this enumeration.

7. Steed’s ninth and tenth enumerations of error are that the trial court erred in denying his motion to suppress the field sobriety tests and his motion to dismiss for lack of probable cause. He urges us to apply the de novo standard of review.

We agree that the trial court’s application of the law to the facts is subject to de novo review if the facts are stipulated, or if the critical facts do not depend on the testimony of witnesses who are subject to cross-examination. However, a trial court’s ruling on a motion to suppress frequently involves a mixed question of fact and law. When the outcome of a motion to suppress depends on the credibility of the witnesses or on disputed facts, and the trial court has not committed an error of law, the court’s ruling will not be disturbed on appeal. As a reviewing court, we must accept the factual and credibility determinations and inferences drawn by the trier of fact... as long as there is evidence in the record to support the trial court’s findings.

Where, as here, the underlying facts support conflicting inferences as to whether the defendant committed an unsafe lane change, we apply a clearly erroneous standard of review and defer to the trial court’s finding on the issue. Therefore, we find no error in the tried court’s denial of Steed’s motion to suppress and motion to dismiss for lack of probable cause.

Decided May 11, 2011

Ellery Steed, pro se.

Barry E. Morgan, Solicitor-General, for appellee.

Judgment affirmed.

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

       Steed also represented himself at his trial.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-5-121 (a).

       OCGA § 40-6-123 (a).

       OCGA § 40-6-253 (b) (1) (B).

       (Citation, punctuation and footnote omitted.) Boring v. State, 303 Ga. App. 576, 577 (1) (694 SE2d 157) (2010).

       While watching the dash camera video during trial, Miller noticed Steed wobble slightly on the one legged stand, which would be one clue.

       (Citation and punctuation omitted.) Jones v. State, 270 Ga. 25, 29 (8) (505 SE2d 749) (1998).

        Heard v. State, 257 Ga. App. 505, 507 (2) (571 SE2d 524) (2002).

       Id.

       (Citation and punctuation omitted.) Wilbourne v. State, 214 Ga. App. 371, 372 (1) (448 SE2d 37) (1994).

        Heard v. State, supra.

       (Citations and punctuation omitted.) Westmoreland v. State, 192 Ga. App. 173, 176-177 (2) (b) (384 SE2d 249) (1989).

       208 Ga. 73 (65 SE2d 175) (1951).

       Id. at 75.

       (Citations and punctuation omitted.) Id. at 75-76.

       (Citation omitted; emphasis supplied.) Felker v. State, 252 Ga. 351, 377 (11) (314 SE2d 621) (1984).

       We also note that no basis was given by Steed for his objection.

        Wilson v. State, 278 Ga. App. 420, 421 (629 SE2d 110) (2006); OCGA § 40-5-121.

       See Griffin v. State, 302 Ga. App. 807, 809 (692 SE2d 7) (2010) (Probationer’s statement that his license was suspended was sufficient for revocation of probation.).

        Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992) (“Errors not raised in the trial court will not be heard on appeal.”) (citation omitted).

        Paul v. State, 272 Ga. 845, 849 (3) (537 SE2d 58) (2000).

        Earnest v. State, supra.

       (Emphasis supplied.)

       (Citations omitted.) State v. Gardner, 286 Ga. 633, 634-635 (690 SE2d 164) (2010).

       (Citation and punctuation omitted; emphasis supplied.) English v. State, 260 Ga. App. 620, 625 (4) (b) (580 SE2d 351) (2003). See also OCGA § 17-8-75 (trial court’s duty to prevent counsel or party from making statements of prejudicial matters not in evidence during argument).

       See Branscomb v. State, 272 Ga. App. 700, 701 (1) (613 SE2d 222) (2005).

       Id.

       296 Ga. App. 792, 793 (2) (676 SE2d 258) (2009).

        State v. Gardner, supra at 633-635.

        Earnest v. State, supra.

       (Citation and punctuation omitted; emphasis supplied.) Slayton v. State, 281 Ga. App. 650, 650-651 (1) (637 SE2d 67) (2006).

       See State v. Goode, 298 Ga. App. 749, 750 (681 SE2d 199) (2009).

       Steed’s motion to suppress was also grounded on his contention that there was insufficient evidence of an improper lane change. We need not further address this issue.


author: BARNES, Presiding Judge.

text:
    A11A0372.
    CASTILLO v. THE STATE.
    (710 SE2d 703)
   BARNES, Presiding Judge.

Jose David Castillo was convicted of child molestation and sexual battery. He appeals from the denial of his motion for a new trial, contending that his convictions should be reversed because the trial court erred by instructing the jury that the transcript of a conversation translated from a foreign language into English did not constitute substantive evidence. For the reasons set forth below, we affirm.

On appeal following a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. Gordon v. State, 294 Ga. App. 908 (1) (670 SE2d 533) (2008). So viewed, the evidence showed that at the time of trial, the victim was nine years old and about to enter the fourth grade. When the victim was in second grade, she and her family began attending a church in downtown Rome. Castillo’s wife was the pastor of the church.

When the victim went to church with her family, Castillo would approach her near the water fountain, in the women’s bathroom, and in the church kitchen when no other adults were present. Castillo touched the victim’s breasts on top of her clothes with a drumstick and with his hand, and he kissed her on the lips. He put his hand inside her pants and stuck his finger inside her buttocks while telling her that it felt good. Castillo touched the victim two or three different times. He threatened the victim that if she told anyone, he would hit her.

The victim told her older sister what was happening at church, and they told their mother. The victim’s mother thereafter was contacted by Castillo’s wife, who said that Castillo wanted to ask for forgiveness. The victim’s mother contacted the police, who set up a recording device on her telephone with her consent. The subsequent telephone conversation between the victim’s mother and Castillo, which was in Spanish, was tape-recorded. Castillo admitted during the call that he had grabbed the victim’s breasts and buttocks and had kissed her, and he said that he recognized his mistake and had asked God to forgive him.

Castillo was arrested, indicted, and tried on charges of child molestation and sexual battery. At trial, the victim testified regarding how Castillo had touched and kissed her at church, and the State introduced and played for the jury a videotaped forensic interview in which the victim described what had occurred.

Additionally, the State introduced the taped telephone conversation between the victim’s mother and Castillo. Because the conversation was in Spanish, a written transcript translating it into English was prepared before trial. Moreover, the trial court arranged for an interpreter to be available at trial to orally translate the taped conversation for the jury. The interpreter who orally translated the taped conversation at trial was a different interpreter from the one who had prepared the transcript. But the interpreter at trial reviewed the transcript prior to its presentation to the jury and found that it was consistent with her own translation.

In introducing the taped conversation, the State and Castillo stipulated both to the authenticity of the tape and the accuracy of the transcript. Following the stipulation, the trial court told the jurors that they would be given copies of the transcript, but instructed them that the taped telephone conversation itself was the evidence, not the transcript, which was just there to assist them. The court also informed the jurors that a court interpreter was going to translate the tape into English simultaneous to it being played for them. After the court’s instruction, a copy of the transcript was provided to each juror, and the tape then was played for the jury at the same time as the interpreter orally translated the conversation. Upon the conclusion of the recording, the transcripts were collected from the jurors. Castillo did not object to the introduction and playing of the taped conversation, to the use of the transcript, to the use of the interpreter, or to the trial court’s limiting instruction.

On appeal, Castillo maintains that the trial court’s limiting instruction regarding the transcript of the taped telephone conversation was erroneous. Specifically, he argues that the court should have instructed the jury that the transcript, because it was a translation from a foreign language, constituted substantive evidence. By failing to instruct the jury in this manner, Castillo contends that the jury might have disregarded the transcript and instead have relied exclusively on the simultaneous oral translation to arrive at the content of the telephone conversation, which he contends would have been inappropriate.

Decided May 11, 2011.

Jared M. Campbell, for appellant.

Leigh E. Patterson, District Attorney, Kay A. Wetherington, Assistant District Attorney, for appellee.

Although Castillo complains that the trial court gave an erroneous limiting instruction, the record shows that he failed to object to the instruction at trial. Therefore, any error was waived. See Evans v. State, 298 Ga. App. 505, 507 (2) (680 SE2d 446) (2009); Moore v. State, 286 Ga. App. 313, 318 (3) (b) (649 SE2d 337) (2007); Sutton v. State, 245 Ga. App. 881, 884 (4) (539 SE2d 227) (2000). Furthermore, irrespective of whether the trial court’s instruction was erroneous, it was harmless. It is well settled that “harm as well as error must be shown to warrant reversal.” Christensen v. State, 245 Ga. App. 165, 166 (1) (a) (537 SE2d 446) (2000). And “the standard for weighing nonconstitutional error in criminal cases is known as the ‘highly probable test,’ i.e., [whether] it is highly probable that the error did not contribute to the judgment. ” (Punctuation and footnote omitted.) Leverette v. State, 303 Ga. App. 849, 852 (2) (696 SE2d 62) (2010). Here, it is highly probable that the alleged error in the trial court’s limiting instruction did not contribute to the judgment, because Castillo failed to show that the transcript was materially different from the oral translation made by the in-court interpreter. Accordingly, we discern no ground for reversal under the circumstances of this case.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       When a taped conversation is in English, our Supreme Court has held that a transcript of the conversation is not evidence, but rather an aid to assist the jury in following what is said on the tape. See Stewart v. State, 286 Ga. 669, 672 (4) (b) (690 SE2d 811) (2010); Slakman v. State, 272 Ga. 662, 666 (2) (533 SE2d 383) (2000); Washington v. State, 268 Ga. 598, 600 (3) (492 SE2d 197) (1997). Arguably, a different rule should apply where the taped conversation is in a foreign language. See, e.g., United States v. Cruz, 765 F2d 1020, 1023-1024 (11th Cir. 1985) (English language transcript of taped conversation in Spanish could be relied upon by jury as substantive evidence; district court did not err by playing the taped conversation to the jury while an interpreter signaled when it was appropriate for the jury to turn the pages of their copies of the transcript). However, we need not resolve this issue in the context of this appeal for the reasons discussed infra.