author: Andrews, Judge.

text:
    A11A0109.
    BENN v. THE STATE.
    (710 SE2d 587)
   Andrews, Judge.

Gerald Lewis Benn was tried before a jury on a multi-count indictment and found guilty of (Count 1) aggravated battery upon a peace officer engaged in the performance of official duties; (Count 2) aggravated assault with intent to murder upon the same peace officer engaged in the performance of official duties; (Count 3) aggravated assault with a deadly weapon upon the same peace officer engaged in the performance of official duties; (Count 4) possession of a firearm during the commission of aggravated assault upon the same peace officer; (Count 5) robbery by sudden snatching against a second victim; (Count 6) aggravated assault with a deadly weapon upon the second victim; (Count 7) possession of a firearm during the commission of aggravated assault upon the second victim; (Count 8) aggravated assault with a deadly weapon upon a third victim; (Count 9) possession of a firearm during the commission of aggravated assault upon the third victim; and (Count 11) fleeing or attempting to elude a police officer. The guilty verdict on Count 2 was vacated when the trial court merged Count 2 into Count 1 during sentencing.

On appeal from the judgment of conviction entered on the nine remaining counts, Benn claims: (1) that the evidence was insufficient as to Counts 1 and 3 because the State failed to prove that he knew the victim named in those counts was a peace officer; (2) that the trial court erred by failing to merge Counts 1 and 3; and (3) that the trial court erroneously re-opened the evidence to allow the State to present additional evidence on Counts 6 and 7. We find no error and affirm.

Construed in favor of the guilty verdicts, the State’s evidence showed the following: While out one night, Benn and his fiancée had an argument about their relationship. Benn became angry, accosted his fiancée, and after a brief struggle snatched the diamond engagement ring off her finger. Benn left his fiancée where the altercation occurred and drove back to his house where they lived together. The fiancée called her daughter and the police and explained what happened to a uniformed Clayton County police officer who responded to the call. The fiancée then drove to the house with her daughter, followed by the police officer. Accompanied by her daughter and the police officer, the fiancée entered the house for the purpose of retrieving some belongings and leaving. Benn testified that, because he expected trouble, he was waiting at his house with a loaded revolver and shotgun. After the fiancée, daughter, and uniformed police officer entered the house, Benn confronted them and started screaming -at the fiancée while hiding the revolver behind his back. The police officer saw the shotgun leaning up against a door and started to move in that direction to place herself between Benn and the shotgun. When Benn saw the officer move toward the shotgun, he immediately moved toward the officer, pointed the revolver at her, and fired two shots. The first bullet grazed across the officer’s back, and the second bullet hit the officer in the chest and partially penetrated her body armor vest. Benn immediately chased and fired several shots at the fiancée and daughter as they fled to a neighbor’s house. Although the second bullet fired at the officer gouged a deep wound in her chest, she was able to call fellow officers for help and describe Benn’s vehicle as he sped away from the scene. Benn fled from but was captured by other Clayton County police officers pursuing him in marked police cars with flashing lights and sirens at speeds over 90 miles per hour. As a result of the bullet wound, the police officer underwent reconstructive procedures, including a skin graft, and suffered permanent scarring.

1. The State produced evidence that Benn fired the shots at a uniformed police officer. Contrary to Benn’s contention, the evidence was sufficient for the jury to find beyond a reasonable doubt that Benn knew the victim in Counts 1 and 3 was a peace officer. Dawsey v. State, 234 Ga. App. 540, 541 (507 SE2d 786) (1998).

2. Contending that the offenses merged, Benn claims the trial court erred by convicting and sentencing him for aggravated battery upon a peace officer in Count 1, and for aggravated assault with a deadly weapon upon the same peace officer in Count 3. There was no merger and no error in convicting and sentencing Benn for both offenses.

One method of committing the offense of aggravated battery is to maliciously cause bodily harm to a victim by seriously disfiguring the victim’s body. OCGA § 16-5-24 (a). Count 1 charged that Benn committed the offense of aggravated battery on a peace officer by causing the officer to suffer a seriously disfiguring scar as a result of the bullet wound to her chest. One method of committing the offense of aggravated assault is to assault a victim with a deadly weapon. OCGA § 16-5-21 (a) (2). Count 3 charged that Benn committed the offense of aggravated assault by shooting the peace officer with a revolver. Because Benn fired two shots at the peace officer in quick succession without any “deliberate interval” between the shots, this constituted only one act of assault, not two acts. Coleman v. State, 286 Ga. 291, 294-295 (687 SE2d 427) (2009). Accordingly, the same conduct by Benn provided the evidence sufficient to support the guilty verdicts on Counts 1 and 3.

Under OCGA § 16-1-7 (a) (1),

[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if. . . [o]ne crime is included in the other. . . .

Under OCGA § 16-1-6 (1), one crime is “included in” another crime where “ ‘(i)t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of (the other crime).’ ” Drinkard v. Walker, 281 Ga. 211, 213 (636 SE2d 530) (2006). To determine under OCGA § 16-1-6 (1) whether the criminal provisions in Counts 1 and 3 merged because one is included in the other, we apply the “required evidence” test to determine “whether each provision requires proof of a fact which the other does not.” (Citation and punctuation omitted.) Drinkard, 281 Ga. at 215. Because the offense of aggravated battery in Count 1 requires proof of an additional fact — bodily harm by serious disfigurement of the victim’s body — which the offense of aggravated assault in Count 3 does not, there was no merger despite the fact that the offenses stemmed from a single act. Id.; Works v. State, 301 Ga. App. 108, 114 (686 SE2d 863) (2009).

3. The trial court did not abuse its discretion by permitting the State to reopen the evidence after resting its case for the purpose of introducing additional testimony to establish the applicability of sentencing provisions in OCGA § 16-5-21 (j) with respect to Count 6. Leach v. State, 143 Ga. App. 598, 600-601 (239 SE2d 177) (1977).

Judgment affirmed.

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

Decided April 19, 2011.

Marc A. Pilgrim, for appellant.

Tracy Graham-Law son, District Attorney, Billy J. Dixon, Michael D. Thurston, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A09A1448.
    ROBERTS v. POINTER et al.
    (710 SE2d 594)
    Decided April 20, 2011.

      Carlock, Copeland & Stair, Frederick M. Valz III, Erica L. Parsons, Cruser & Mitchell, Raymond R. Grant II, for appellant.

      Kam, Ebersbach & Lewis, Randy J. Ebersbach, for appellees.
   SMITH, Presiding Judge.

In Pointer v. Roberts, 288 Ga. 150 (702 SE2d 130) (2010), the Supreme Court reversed the judgment of this court in Roberts v. Pointer, 301 Ga. App. 531 (687 SE2d 848) (2009). We therefore vacate our earlier opinion and adopt the judgment of the Supreme Court as the opinion of this court.

Judgment affirmed.

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


author: BARNES, Presiding Judge.

text:
    A11A0241.
    CLEMENT v. THE STATE.
    (710 SE2d 590)
   BARNES, Presiding Judge.

A jury convicted Dax Corbin Clement of terroristic threats, criminal damage to property in the second degree, criminal trespass, simple battery, and family violence battery. Clement appeals from the denial of his motion for a new trial, contending that the trial court erred in denying his motion for a directed verdict of acquittal on the charge of terroristic threats. Clement also contends that the trial court unlawfully sentenced him by failing to merge his conviction for simple battery into his conviction for family violence battery. For the reasons discussed below, we affirm the judgment of conviction for terroristic threats but agree with Clement that his simple battery and family violence battery convictions should have merged. Accordingly, we vacate Clement’s judgment of conviction and sentence for simple battery and remand his case to the trial court for resentencing.

1. In reviewing the denial of a motion for a directed verdict of acquittal, we apply the same standard of review applicable to a challenge to the sufficiency of the evidence. Jackson v. State, 236 Ga. App. 260 (511 SE2d 615) (1999). “Under that standard[,] we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Id. It is the role of the jury, not this court, to resolve conflicts in the testimony and assess witness credibility. Id. at 261.

Viewed in the light most favorable to the verdict, the evidence showed that the female victim was involved in a “stormy relationship” with Clement and had lived with him “off and on” for many years. At the time of the incident in question, the victim and Clement had recently become parents. The victim, along with the infant child, were staying at her cousin’s home. Clement was living at a separate residence, although he would sometimes spend the night at the cousin’s home as well.

On the day of the incident, the victim and Clement had a heated argument over the telephone regarding whether the victim should move into her own apartment without him. Clement drove over to the cousin’s home and confronted the victim in the front yard. The cousin, who was in the back yard, suddenly heard the victim screaming for help. The cousin ran to the front yard, where she saw Clement chasing the victim while holding what appeared to be a knife. As he chased the victim, Clement was screaming, “[Y]ou and that child are going with me. You’re going to get in the car and go with me.” The victim yelled, “[P]lease don’t hurt me,” and shouted for her cousin not to let Clement get the infant child from inside the home.

During the chase across the front yard, the victim was able to grab a shovel to defend herself from Clement and struck him on the shoulder, causing him to stumble. Clement grabbed the shovel and struggled with the victim for control. As they struggled over the shovel, Clement head-butted the victim several times in the face. He also struck the victim in the face with the shovel.

After the victim fell to the ground from the blows to her face, Clement threw down the shovel and went up the front steps of the cousin’s home. He demanded that the cousin, who was standing by the front door, let him inside so that he could get the infant child. The cousin refused to open the door and asked Clement several times to leave her property. Clement would not leave and repeatedly attempted to force open the door. As they struggled over the door, the cousin called 911 on her cell phone.

Clement was unsuccessful in forcing open the front door. He returned down the front steps, picked up the shovel, and approached the victim’s car that was parked in the front yard. Clement smashed in the windows of the car and then ran into the nearby woods.

A responding officer apprehended Clement when he emerged from the woods. The officer observed the injuries to the victim’s face and the smashed windows of her car. Emergency response personnel who arrived at the scene confirmed that the victim had facial swelling and was bleeding from the nose. They noted that the victim’s nose appeared broken. The victim told them that her injuries were caused by Clement head-butting her in the face. However, she refused to go to the hospital for further treatment or to allow pictures to be taken of her injuries.

Clement was indicted and tried before a jury on two counts of terroristic threats against the cousin and the victim, respectively, and on one count each of aggravated assault, criminal damage to property in the second degree, criminal trespass, simple battery, and family violence battery The victim’s cousin, responding police officer, and emergency response personnel testified to the events as discussed above. The victim took the stand and denied that she had been threatened by Clement, that he had chased her with a knife, that he had intentionally hit her with the shovel, or that he had smashed in the windows of her car.

After the State rested, the trial court granted Clement’s motion for a directed verdict of acquittal on the charge of making terroristic threats against the cousin, given that the only testimony concerning that threat came from the cousin herself. See OCGA § 16-11-37 (a) (“No person shall be convicted [of terroristic threats] on the uncorroborated testimony of the party to whom the threat is communicated.”). The trial court, however, denied Clement’s motion for a directed verdict of acquittal on the charge of making terroristic threats against the victim in light of the cousin’s testimony concerning what had transpired.

The jury subsequently convicted Clement of making terroristic threats against the victim and of criminal damage to property in the second degree, criminal trespass, simple battery, and family violence battery, but acquitted him of aggravated assault. Clement’s sentence for simple battery was enhanced based upon a special finding by the jury that Clement and the victim “were living or formerly living in the same household.” Clement filed his motion for a new trial, which the trial court denied, resulting in this appeal.

Clement maintains that there was insufficient evidence to sustain his conviction for making terroristic threats against the victim. He contends that there was no evidence that he communicated a “threat” to the victim or that he acted with the intent to terrorize. We are unpersuaded.

"A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence[] . . . with the purpose of terrorizing another{.]" OCGA § 16-11-37 (a). See Lanthrip v. State, 235 Ga. 10, 11 (218 SE2d 771) (1975). "The crime of making terroristic threats focuses solely on the conduct of the accused and is completed when the threat is communicated to the victim with the intent to terrorize." Armour v. State, 265 Ga. App. 569, 571 (1) (594 SE2d 765) (2004). Thus, the State must establish two elements to sustain a conviction for making terroristic threats: (a) that the defendant threatened to commit a crime of violence against the victim, and (b) that the defendant did so with the purpose of terrorizing the victim. Martin v. State, 303 Ga. App. 117, 119 (1) (692 SE2d 741) (2010). Both elements were established in this case.

(a) There was sufficient evidence that Clement made a threat to commit a crime of violence against the victim. While OCGA § 16-11-37 (a) does not define "threat," words in a statute "should be construed in a manner that gives the words their plain and ordinary meaning unless it would lead to absurd results." Barnett v. Fullard, 306 Ga. App. 148, 151 (2) (701 SE2d 608) (2010). See also Chase v. State, 285 Ga. 693, 695 (2) (681 SE2d 116) (2009). Under its plain and ordinary meaning, the word "threat" refers to a communication, declaration, or expression of an intention to inflict harm or damage. Significantly, however, the specific "form of a terroristic threat is not important. It need not take any particular form or be expressed in any particular words, and may be made by innuendo or suggestion." 31A Am. Jur. 2d Extortion, Blackmail, and Threats § 58. See, e.g., Hammock v. State, 210 Ga. App. 513, 515 (3) (436 SE2d 571) (1993) (defendant's anonymous mailing of an envelope containing a spent shotgun shell to the victim, given that defendant frequently quarreled with the victim over money and had previously shot the victim, constituted a terroristic threat). A communication is sufficient to constitute a threat "if a reasonable person could conclude that it was a threat under the circumstances." 86 C. J. S. Threats § 24. See Cook v. State, 198 Ga. App. 886, 887 (2) (403 SE2d 872) (1991) (concluding that although words “I’m gonna get you” may not have expressly threatened victim’s life as alleged in the indictment, the surrounding circumstances, including fact that defendant had previously threatened victim with death and had assaulted her with a pistol, were sufficient to allow jury to convict defendant of making a terroristic threat).

As previously noted, the cousin testified that while Clement was chasing the victim across the front yard with what appeared to be a knife, he was screaming at her, “[Y]ou and that child are going with me. You’re going to get in the car and go with me.” It is true that the words spoken by Clement were not an express threat to commit an act of violence. Nevertheless, when taken in light of the factual surroundings in which they were spoken, a reasonable person could conclude that the words said by Clement conveyed a threat of committing a crime of violence against the victim if she failed to comply with his demand to get in the car and go with him. See, e.g., Williams v. State, 277 Ga. App. 884, 884-886 (1) (627 SE2d 897) (2006) (terroristic threat conviction affirmed, where defendant brandished knives while moving in direction of police officer); In the Interest of C. S. G., 241 Ga. App. 37, 38 (1) (525 SE2d 106) (1999) (noting that “displaying a handgun to another under threatening circumstances may constitute ... a terroristic threat”). As such, the State presented sufficient evidence to establish the first element of a terroristic threat.

(b) There also was sufficient evidence that Clement made the threat for the purpose of terrorizing the victim. “Direct evidence that the threats were made for the purpose of terrorizing another is not necessary if the circumstances surrounding the threats are sufficient for a trier of fact to find the threats were made for such a purpose.” (Citations, punctuation and footnotes omitted.) Hobby v. State, 298 Ga. App. 52, 54 (1) (679 SE2d 72) (2009). Here, the threat was made during the course of a violent physical attack by Clement upon the victim, and, consequently, we have no trouble concluding that the evidence adequately established that he made the threat for the purpose of terrorizing her.

For these combined reasons, the State met its burden of proving the two elements necessary for sustaining a terroristic threats conviction. A rational trier of fact was entitled to find Clement guilty beyond a reasonable doubt of making terroristic threats to the victim. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 20, 2011.

James C. Wyatt, for appellant.

Leigh E. Patterson, District Attorney, Stephen J. Cox, C. Stephen Cox, Assistant District Attorneys, for appellee.

2. Clement argues that the trial court unlawfully sentenced him by failing to merge his conviction for simple battery (OCGA § 16-5-23 (a) (2)), the punishment for which was enhanced because he and the victim had lived together in the same household (OCGA § 16-5-23 (f)), into his conviction for family violence battery (OCGA § 16-5-23.1 (a), (f)). The two battery convictions merged if “each battery was not a separate and complete criminal act but rather was part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent.” (Citation and punctuation omitted.) Pierce v. State, 301 Ga. App. 167, 177 (7) (687 SE2d 185) (2009) (family violence battery conviction should have been merged with family violence aggravated battery conviction). The State concedes that Clement’s conviction for simple battery should have been merged into his conviction for family violence battery, and we agree. See id. Therefore, we vacate Clement’s judgment of conviction and sentence for simple battery and remand the case to the trial court for resentencing. See Carter v. State, 285 Ga. 394, 399 (8) (677 SE2d 71) (2009).

Judgment affirmed in part and vacated in part, and case remanded for resentencing.

Adams and Blackwell, JJ., concur.

       "[Djictionaries may supply the plain and ordinary meaning of a word." (Citation and punctuation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 107 (1) (661 SE2d 578) (2008). Black's Law Dictionary defines "threat" as: "A communicated intent to inflict harm or loss on another or on another's property, esp. one that might diminish a person's freedom to act voluntarily or with lawful consent." Black's Law Dictionary (9th ed. 2009). In turn, "communication" is defined by Black's Law Dictionary as: "The expression or exchange of information by speech, writing, gestures, or conduct; the process of bringing an idea to another's perception." Id. Other dictionaries define "threat" as "a declaration of the intention to inflict harm, pain, or misery," Collins English Dictionary (10th ed. 2009), or as "an expression of intention to inflict evil, injury, or damage," Merriam-Webster's Online Dictionary, http://www.merriam-webster.com/dictionary/threat.

       Because the cousin was not the party to whom the threat was communicated, corroboration of the cousin’s testimony was not required to sustain the conviction. See Warnock v. State, 195 Ga. App. 537, 540 (4) (394 SE2d 382) (1990). We also note that although Clement was acquitted of aggravated assault, “Georgia does not recognize the inconsistent verdict rule.” Taylor v. State, 305 Ga. App. 748, 751 (1), n. 4 (700 SE2d 841) (2010). Hence, Clement “may not use his acquittal on one count to challenge the factual findings of guilt on a separate count.” (Citations and punctuation omitted.) Id.


author: MCFADDEN, Judge.

text:
    A11A0633.
    SWANSON v. THE STATE.
    (708 SE2d 307)
   MCFADDEN, Judge.

On October 8, 2007, Harley Swanson, with the assistance of counsel, pled guilty to robbery, aggravated assault and burglary. That same date, the trial court entered judgment of conviction and imposed a total sentence of 35 years, with 15 years to be served in confinement, followed by 20 years of probation. Three years later, on September 30, 2010, Swanson filed a pro se motion in arrest of judgment, claiming that the indictment upon which he entered his guilty plea was invalid in that it failed to properly allege venue. The trial court denied the motion, finding that the indictment was not defective as to venue because it alleged that the offenses occurred in Floyd County. Swanson appeals, challenging the denial of his motion. We affirm because the motion in arrest of judgment was untimely.

Decided April 20, 2011.

Harley D. Swanson, pro se.

Leigh E. Patterson, District Attorney, for appellee.

“[A] motion in arrest of judgment [is] a post-trial means by which a defendant may challenge an indictment as one would do in a general demurrer. [Cit.]” Dasher v. State, 285 Ga. 308, 310 (2) (676 SE2d 181) (2009). See also Shelton v. State, 307 Ga. App. 599, 603 (3) (b) (705 SE2d 699) (2011) (where no general demurrer was interposed and judgment of conviction was entered, motion in arrest of judgment is a proper remedy to challenge validity of indictment). However, “[a] motion in arrest of judgment must be filed within the term of court in which the judgment was rendered. OCGA § 17-9-61 (b).” Dasher, supra. Here, Swanson did not file his motion within the same term of court in which the judgment was rendered, and instead filed it three years, and many terms of court, later. See OCGA § 15-6-3 (33) (Floyd County terms of court begin on the second Monday in January, March, July and September, and on the first Monday in May and November). Accordingly, “we cannot address the merit of [Swanson’s] motion in arrest of judgment because it was not timely filed. [Cit.]” Dasher, supra. See also Thompson v. State, 286 Ga. 889, 890 (2) (692 SE2d 379) (2010).

Judgment affirmed.

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


author: McFADDEN, Judge.

text:
    A11A0722.
    GATTISON v. THE STATE.
    (711 SE2d 25)
   McFADDEN, Judge.

After a bench trial, Derick Gattison was convicted of possessing less than one ounce of marijuana. Gattison appeals, asserting that the trial court erred in denying his motion to suppress evidence of marijuana seized after he was stopped by a police officer. Because the officer did not have a reasonable suspicion that Gattison was involved in criminal activity, the stop was not justified. Accordingly, we reverse.

“On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” (Citations and punctuation omitted.) Stringer v. State, 285 Ga. 842, 843 (2) (684 SE2d 590) (2009). In conducting such a review, “we must focus on the facts found by the trial court in its order, as the trial court sits as the trier of fact.” (Emphasis omitted.) Miller v. State, 288 Ga. 286, 287 (1) (702 SE2d 888) (2010). Here, the trial court made the following findings of fact in its order:

On or about January 12, 2010, at approximately 10:30 a.m., Officer Steven McLean with the City of Riverdale Police Department was on patrol at the intersection of Upper Riverdale Road and Baldwin Court, in Clayton County. Officer McLean testified he observed six males on the sidewalk in what appeared to be a heated debate or discussion. He testified that although he was unable to hear the conversation, their general body language and expressions indicated to him that it was not a typical conversation and things were becoming heated. Officer McLean believed a fight may ensue between the members of the group. The officer parked his patrol car in the roadway near the group and activated his blue lights as a safety precaution to other motorists. The group began to disperse upon observation of the officer. As Officer McLean approached the group of males on foot, he said for them to “come back” so he could speak with them. [Gattison] hesitantly complied. Officer McLean asked what were they doing there and [Gattison] stated they were talking about a recent shooting in the area. The officer asked [Gattison] if he had any weapons or contraband on him for the sake of his safety. [Gattison] admitted he had marijuana in his pocket. A green leafy substance of suspected marijuana was found in his pocket.

“[P]olice-citizen encounters are generally categorized into three tiers: consensual encounters [involving no restraint]; brief investigatory stops, which require reasonable suspicion; and arrests that must be supported by probable cause.” (Citation omitted.) Black v. State, 281 Ga. App. 40, 43 (1) (635 SE2d 568) (2006). The trial court found, and the parties agree in their briefs, that Officer McLean conducted a second-tier investigatory stop by “not allowing [Gatti-son] to continue on his way away from [the officer’s] questioning.”

During a second-tier encounter, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. To stop a citizen, the officer must possess more than a subjective, unparticularized suspicion or hunch. The officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing.

(Citation, punctuation and emphasis omitted.) Groves v. State, 306 Ga. App. 779, 781 (703 SE2d 371) (2010). In this case, the trial court found that the officer had a reasonable suspicion that Gattison was engaged, or about to be engaged, in criminal conduct because “[i]t is undisputed that the body movements and actions between the members of the group indicated to Officer McLean that a heated discussion was escalating to a physical fight on a public street.” Relying on Nelson v. State, 252 Ga. App. 454 (556 SE2d 527) (2001), for the proposition that a police officer has the inherent power to protect the lives, health and property of citizens, the trial court concluded that Officer McLean properly detained Gattison.

The trial court’s reliance on Nelson is misplaced.

In that case, the officer followed a vehicle in which he witnessed an ongoing altercation that involved the passenger’s hand only a few inches from the driver’s face. The vehicle was also drifting in its lane. Under those circumstances we found that the trial court was authorized to conclude that a brief investigative stop was permissible.

(Citation and punctuation omitted.) State v. Martin, 291 Ga. App. 548, 550 (662 SE2d 316) (2008). The instant case, of course, does not involve a motor vehicle drifting in its lane as the driver was engaged in an ongoing altercation with a passenger. Moreover, contrary to the trial court’s finding, there is no evidence that the discussion was actually escalating into a physical altercation, let alone undisputed evidence that the group’s actions indicated to Officer McLean that a physical fight was imminent. The officer’s actual testimony was that he “wasn’t sure if it was something that was escalating into a fight,” and “their body movements, facial expressions, . . . hands moving around a little bit, [were] kind of indicative of some kind of, you know, intense conversation, at least at a minimum.” (Emphasis supplied.)

Thus, this case is factually distinct from Nelson, and is more akin to Miller, supra. In that case, officers on patrol saw a group of six or seven men standing in a parking lot as one of the men applied tint to the window of a car that had no visible license plate. Id. at 287. The officers stopped their vehicle and approached the men on foot. Id. As the defendant began to walk away, one of the officers ordered him to stop, apprehended him and found cocaine in his pants pocket. Id. In reversing this court’s ruling that the officer had a reasonable suspicion to justify the stop, the Supreme Court of Georgia upheld the trial court’s findings that the officer never saw the defendant do anything illegal before the stop and that the stop was based on a mere hunch. Id. at 288-289.

Decided April 20, 2011.

Sumeet P. Shah, for appellant.

Taska M. Mosley, Solicitor-General, Linda N. Fleming, Assistant Solicitor-General, for appellee.

Similarly, in this case, Officer McLean did not see Gattison do anything unlawful. As the officer conceded at the suppression hearing, there was nothing illegal about Gattison standing on a sidewalk at 10:30 in the morning, engaging in a discussion with others and walking away upon the officer’s arrival. Indeed, the mere fact that Gattison walked away from the officer “did not create an objective articulable suspicion. . . . [A] citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter. Such conduct may not provide the basis for elevating the encounter to a second-tier . . . stop.” (Citations and punctuation omitted.) Black, supra at 46. Under the circumstances, the officer observed nothing more than lawful conduct that did not give him a reasonable articulable suspicion of criminal activity, and therefore the stop of Gattison was based on a mere hunch. See Martin, supra; Miller, supra. Accordingly, the trial court erred in denying the motion to suppress.

Judgment reversed.

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


text:
    A11A0421.
    DAVIS v. CITIMORTGAGE, INC.
    (710 SE2d 577)
   MCFADDEN, Judge.

LaShunda Davis appeals the grant of a writ of possession to CitiMortgage, Inc. Davis challenges CitiMortgage’s title as well as its failure to file a notice of substitution of counsel. Because Davis cannot challenge CitiMortgage’s title in this dispossessory proceeding and because Davis has failed to file a transcript to support her claims regarding substitution of counsel, we affirm.

After Davis defaulted on her mortgage, CitiMortgage foreclosed on the property securing the note. It then filed this dispossessory action alleging that Davis was a tenant at sufferance and seeking possession. Davis moved to dismiss the dispossessory petition, but the trial court entered judgment in favor of CitiMortgage. Davis, who is proceeding pro se, filed this appeal.

1. First we observe that CitiMortgage has not filed an appellee’s brief. See Court of Appeals Rule 23 (b). (“Appellee’s brief shall he filed within 40 days after the appeal is docketed or 20 days after the filing of appellant’s brief, whichever is later. Failure to timely file may result in non-consideration of the brief and may subject counsel to contempt.”) (Emphasis supplied.) Instead, CitiMortgage has moved to dismiss the appeal on the ground that Davis has not filed a transcript of the dispossessory hearing or a suitable substitute. However, when, as here, a hearing was not recorded, the failure to file a transcript is not a ground for dismissing an appeal. See OCGA § 5-6-48 (f) (an appeal may be dismissed if an appellant causes a court reporter to fail to file the transcript of evidence and proceedings within the time allowed by law); see also OCGA § 5-6-48 (b) (“No appeal shall be dismissed . . . except: (1) For failure to file notice of appeal within the time required as provided in this article or within any extension of time granted hereunder; (2) Where the decision or judgment is not then appealable; or (3) Where the questions presented have become moot.”). CitiMortgage’s motion to dismiss the appeal is therefore denied.

2. Several of Davis’s arguments are based on her contention that she had quitclaimed her interest in the property to Osayuki Newman Igbinovia before CitiMortgage filed its foreclosure deed. These arguments challenge the validity of CitiMortgage’s title. But “[c]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under OCGA § 44-7-50 et seq.” (Citation and punctuation omitted.) Sanders v. Daniel, 302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010).

3. Davis argues that the trial court erred by allowing attorney Robert Shurtz to appear on behalf of CitiMortgage at the disposses-sory hearing when the dispossessory petition was filed by attorney Daniel Barbagelata, and neither attorney filed a notice of substitution of counsel. We cannot review this argument because of Davis’s failure to include in the record a hearing transcript or a statutorily-authorized substitute. In her response to CitiMortgage’s motion to dismiss the appeal, Davis asserts that she has provided a narrative of the hearing. But because her statement of the testimony was approved by neither opposing counsel nor the trial court, we cannot consider it. Parker v. State, 154 Ga. App. 668-669 (1) (269 SE2d 518) (1980).

Decided April 7, 2011

Reconsideration denied April 21, 2011

LaShunda Davis, pro se.

McCurdy & Candler, Daniel K. Barbagelata, for appellee.

Absent a transcript or substitute, we cannot determine what occurred in the trial court.

When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of a writ of possession. As the appellant^ Davis] had the burden to affirmatively show error by the record. This [she] failed to do. Therefore, we must presume the trial court’s judgment granting [Citi-Mortgage] a writ of possession is correct.

(Citation and punctuation omitted.) Owens v. Green Tree Servicing, 300 Ga. App. 22, 24 (1) (684 SE2d 99) (2009).

Judgment affirmed.

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


author: MIKELL, Judge.

text:
    A11A0013.
    MORRIS v. MORRIS.
    (710 SE2d 601)
   MIKELL, Judge.

Cynthia Morris, the biological mother of W. W. M. and G. G. M., appeals from the trial court’s order legitimating Ricky Weldon Morris, Jr., as the father of the children. The mother contends that the trial court erred in granting visitation rights to the father’s sister, Julie Hutwagner, over the mother’s objection, and that a provision linking the father’s visitation of G. G. M. to his visitation with a child from his previous marriage was unenforceably vague. We agree. The mother also claims that the trial court erred in legitimating G. G. M., in allowing for immediate overnight visitation between G. G. M. and the father, and in failing to order that the father undergo alcohol treatment. The mother, however, fails to show that the trial court abused its discretion in so ruling. Accordingly, we affirm in part and vacate in part and remand with direction.

The record shows that the mother and the father, who never married, had two male children, W. W. M. and G. G. M. The mother filed a complaint for child support, and the father counterclaimed for legitimation. Following an evidentiary hearing, the trial court found W. W M. and G. G. M. to be the legitimate children of the father and granted joint custody to the mother and the father. The trial court also granted visitation rights to the father as to both children and, as to W. W M., also granted visitation to Hutwagner, a nonparty.

1. The mother contends, and the father concedes, that the trial court erred in granting visitation rights to Hutwagner. The father testified that he wanted his sister to be available to help him with child visits but not to replace him on the visitations. In addition, the mother opposed having Hutwagner substitute for the father during visitation. She testified that she supported having the father’s family involved with WWM. but that her goal was that “his dad has a bond with him.” The trial court nevertheless awarded visitation to the father “and/or Julie Hutwagner” as to W. W. M.

As a rule, “[t]he right to determine whom the child shall visit and associate with, and when, where, and how often these visits and associations shall take place, is an inseparable and inalienable ingredient of the right of a parent to custody and control of a minor child.” Although grandparents may now sue for and obtain visitation rights and certain third-party family members, including aunts, may seek custody of a minor child, these statutes have no application to Hutwagner, who is neither a grandparent seeking visitation nor a family member seeking custody, but a nonparty to the action. Accordingly, we agree with the parties that the trial court’s grant of visitation rights to Hutwagner was error. As Hutwagner’s participation appears integral to the trial court’s visitation scheme, that portion of the trial court’s order providing for the visitation ofWWM. is vacated in its entirety.

2. The mother claims that the father had virtually no involvement in G. G. M.’s life and thereby waived his “opportunity interest” in developing a relationship with the child. Therefore, she contends, the trial court erred in legitimating G. G. M. We disagree.

Before granting a petition to legitimate, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.

A biological father’s opportunity interest begins at conception and may endure through the minority of the child, but it may “be abandoned by the unwed father if not timely pursued. On the other hand it is an interest which an unwed father has a right to pursue through his commitment to becoming a father in a true relational sense as well as in a biological sense.” Factors which may support a finding of abandonment include, without limitation, a biological father’s inaction during pregnancy and at birth, a delay in filing a legitimation petition, and a lack of contact with the child. “We review a trial court’s ruling on a legitimation petition for abuse of discretion.”

The evidence in this case was developed over the course of three days of hearings during which the issues of legitimation, support, and visitation were explored at length. The mother agreed to the father’s legitimation of W W M., who was almost four years old at the time of the hearing, but she opposed his attempt to legitimate then eight-month-old G. G. M., on the grounds that the father had not pursued a relationship with the child. As the mother points out, the father was actively involved in the life of W. W M., a child who had been diagnosed as being “on the autistic spectrum.” She contends that the father’s contact with and financial support of G. G. M. have only been ancillary to his contact with and financial support of W W M. She refers to, among other things, the father’s testimony that “[i]f you’re asking me do I contribute on a daily basis like I do for [W W M.] for [G. G. M.], no, I don’t.”

In considering whether the father abandoned his opportunity interest in forming a relationship with G. G. M., the appropriate inquiry is not “whether the father could have done more,” especially in comparison with the father’s financial contributions to the child’s older brother, W. W. M. As to what the father did in connection with G. G. M., beginning with conception, the evidence shows that although the father did not directly pay the bills associated with G. G. M.’s pregnancy, he provided medical insurance to the mother through his professional corporation so as to avoid out-of-pocket expenditures. He allowed the mother to live in his house during a portion of the pregnancy. The father attended at least one doctor’s appointment during the pregnancy, and he visited the mother at the hospital the day after the birth.

Less than two months after the birth, the father amended his outstanding answer and counterclaim to the mother’s petition for support to assert his claim to legitimate G. G. M. He also reimbursed the mother for some minor medical bills associated with G. G. M. The father had only two visits with G. G. M. at which the mother was not present, but the father testified that the mother was breast feeding the child and for that reason he could not take the child with him. According to the father, the mother did not allow him to be present at G. G. M.’s birth, she did not allow him to assist after the birth, and she did not allow him to participate in any activities with the child. In light of the foregoing, the evidence was sufficient to establish that the father pursued and did not abandon his interest in establishing and maintaining a relationship with G. G. M., and the mother cannot show that the trial court abused its discretion in failing to rule otherwise. The mother does not claim that the father is unfit, and the evidence was sufficient to establish that legitimation was in the child’s best interest. Accordingly, we find no error in the trial court’s decision to legitimate the child.

3. The mother also complains that the ruling of the trial court setting visitation is contrary to the evidence. A trial court has broad discretion in fashioning visitation, “and where there is any evidence to support the trial court’s finding, this court will not find there was an abuse of discretion.”

The trial court’s order sets forth a visitation schedule for WWM. and a visitation schedule for G. G. M. Inasmuch as we have vacated that portion of the order providing for visitation with W W M., the mother’s arguments with respect toWIM. are moot. As to G. G. M., we conclude that the trial court’s decision to allow immediate overnight visitation between G. G. M. and the father was not an abuse of discretion.

Decided April 21, 2011.

Joshua D. Earwood, for appellant.

The mother also challenges paragraph 4 (b) of the order. This provision contemplates visitation between the father and G. G. M. every other weekend, “the same weekends when [the father] has his son [A. F. M., from a previous marriage].” The mother contends the provision is vague and allows for modification of the father’s visitation rights without her consent or that of the trial court. Pretermit-ting whether the provision contemplates self-executing changes in visitation, the challenged provision contemplates visitation on alternate weekends, and it provides for visitation the same weekends when the father has A. F. M., but it is uncertain in its application if the father does not have A. F. M. on a particular alternating weekend or if the father and the previous wife decide to change A. F. M.’s visitation to every weekend or no weekends. Accordingly, we reluctantly conclude that the trial court abused its discretion in the terms of visitation contemplated by paragraph 4 (b).

Lastly, the mother contends the trial court erred in failing to order that the father undergo alcohol abuse treatment, presumably as a condition to visitation or the grant of joint custody. The trial court heard extensive evidence on this issue, and the mother fails to point to any instance in which the father’s drinking endangered the children. Evidence also supports the father’s contention that his drinking in the previous year did not rise to the level of alcohol abuse or dependency. We find no abuse of discretion.

In sum, we affirm the legitimation of G. G. M. We vacate that portion of the order providing for visitation of W. W. M. and, as to the visitation of G. G. M., we vacate paragraph 4 (b). On remand, the trial court is directed to provide for visitation of the children not inconsistent with this opinion.

Judgment affirmed in part and vacated in part, and case remanded with direction.

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

Ricky W. Morris, Jr., pro se.

        Davis v. Davis, 212 Ga. 217, 220 (3) (91 SE2d 487) (1956).

       See OCGA § 19-7-3 (c) (“the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation”).

       OCGA § 19-7-1 (b.l). See Clark v. Wade, 273 Ga. 587 (544 SE2d 99) (2001) (interpreting best-interest-of-the-child standard for purposes of third-party custody statute).

        In re Baby Girl Eason, 257 Ga. 292, 296 (1) (358 SE2d 459) (1987) (unwed fathers have an “opportunity interest” in developing a constitutionally protected relationship with their children).

       (Footnote omitted.) In the Interest of V. B. L., 306 Ga. App. 709, 710-711 (1) (703 SE2d 127) (2010). See generally In the Interest of J. S., 302 Ga. App. 342, 344 (1) (691 SE2d 250) (2010) (“If the [trial] court concludes that the father has abandoned his opportunity interest, that finding is sufficient to end the court’s inquiry and justifies the denial of the legitimation petition”) (citations, punctuation and footnote omitted).

        In re Baby Girl Eason, supra.

       See In the Interest of J. M., 289 Ga. App. 439, 444-445 (1) (c) (657 SE2d 337) (2008); In the Interest of D. S. P., 233 Ga. App. 346, 348-349 (2) (504 SE2d 211) (1998).

       See In the Interest of L. S. T., 286 Ga. App. 638, 639 (1) (649 SE2d 841) (2007); In the Interest of J. L. E., 281 Ga. App. 805, 806-807 (637 SE2d 446) (2006).

       See id. at 807; Smith v. Soligon, 254 Ga. App. 172, 173-174 (2) (561 SE2d 850) (2002).

       (Footnote omitted.) Binns v. Fairnot, 292 Ga. App. 336, 337 (665 SE2d 36) (2008).

       Id. at 338.

       See OCGA § 19-7-22 (g); Carden v. Warren, 269 Ga. App. 275, 276-277 (1) (a) (603 SE2d 769) (2004).

       (Citation and punctuation omitted.) Dupree v. Dupree, 287 Ga. 319, 323 (7) (695 SE2d 628) (2010).

       See Division 1, supra.

       See Dellinger v. Dellinger, 278 Ga. 732, 735 (1) (609 SE2d 331) (2004) (self-executing material changes in visitation are invalid absent evidence that change is in child’s best interest).

       See, e.g., Hewlett v. Hewlett, 220 Ga. 656, 658 (2) (c) (140 SE2d 898) (1965) (order’s provision stricken as vague and indefinite).


author: Doyle, Judge.

text:
    A11A0018.
    KENNY v. THE STATE.
    (710 SE2d 605)
   Doyle, Judge.

Thomas Kenny was convicted of aggravated assault following a bench trial. He challenges the sufficiency of the evidence in this out-of-time appeal. We affirm, for reasons that follow.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or assess witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the evidence shows that on May 22, 2007, at approximately 10:15 p.m., Jason Mohon and Jody Cook went to Kenny’s home to repossess his vehicle, a Kia minivan. Mohon and Cook were in a large tow truck, which had lights mounted on the top, bore the name of the towing company, had a “stinger” on the back that was used to raise and tow vehicles, and had controls for the stinger inside the truck. Once they arrived at Kenny’s address, Mohon exited the wrecker and verified the vehicle identification number on the minivan. Cook then put the tow truck in reverse and began backing it toward the minivan, at which time a woman yelled, “ ‘repo man’ ” and then ran away.

As Cook continued to reverse the tow truck, several people, including Kenny, converged on the scene, and Mohon announced, “We’re here for the repossession on this vehicle for CNAC.” Kenny, who was in “a frenzy,” reached into the tow truck and grabbed Cook by the throat. Cook repeated that he was there to repossess the van, but Kenny placed a knife blade against Cook’s throat, dragged him out of the tow truck, “slam[med]” him “around a little bit,” and told Cook that he would kill him if Cook did not “drop the vehicle.” Cook told Kenny that he could not release the minivan from outside the tow truck, and Kenny told him that he “better make it happen.” Cook then instructed Mohon to drop the minivan, and Mohon complied. Kenny still refused to release Cook, continuing to hold the knife to his throat, even after a woman approached and encouraged Kenny to let Cook go. Kenny finally released Cook when he heard police sirens approaching.

Kenny’s wife, Maria Kenny, testified that she and Kenny bought the minivan in March 2007, and that the vehicle had repeated problems after their purchase. According to Maria, she and Kenny decided to return the car, but they continued to make payments on the vehicle, including a payment on May 7, 2007, and they had not yet made arrangements to return it. Maria further testified that she and Kenny were in bed on May 22, 2007, when they heard a neighbor pounding on their door and repeating, “Somebody taking your car.” Maria followed Kenny outside, where he “had the person up . . . [a]nd me and the neighbor was trying to separate him”; Kenny repeatedly instructed the man to “[p]ut the car down.” Maria denied that Kenny had a knife.

At trial, the triad court admitted a knife into evidence, which the defense stipulated was found inside “the truck” and “was the knife [Kenny] used to defend his property that night.” The trial court also admitted a photograph of Cook’s neck depicting a mark on his throat. Finally, the State stipulated that the Kennys made the payments on the minivan.

During the trial, the defense argued that Kenny’s actions were justified because he was defending his property. At the conclusion of the evidence and closing arguments, the trial court found Kenny guilty of aggravated assault, stating:

I find that as a trier of fact, the defendant’s actions that night were not justified in that what he knew, did he reasonably believe that he had to put a knife to the throat of the other gentleman, that that was reasonably necessary because the other gentleman, the other — the tow truck driver, who was there for the purpose of committing a felony in that his force was necessary to prevent that felony? I think based under all the circumstances, I find and believe that the evidence does prove beyond a reasonable doubt that, in fact, he committed an aggravated assault.

On appeal, Kenny challenges the sufficiency of the evidence, arguing that his use of force against Cook was made in defense of his habitation and authorized under OCGA § 16-3-23, which provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to prevent or terminate such other’s unlawful entry into or attack upon a habitation; however, such person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(1) The entry is made or attempted in a violent and tumultuous manner and he or she reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person dwelling or being therein and that such force is necessary to prevent the assault or offer of personal violence;
(2) That force is used against another person who is not a member of the family or household and who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence and the person using such force knew or had reason to believe that an unlawful and forcible entry occurred; or
(3) The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.

The term “habitation” includes “a motor vehicle.”

Pretermitting whether Mohon’s and Cook’s attempted repossession of Kenny’s minivan was authorized, the trial court was authorized to conclude, as it did here, that Kenny’s actions, including holding a knife to Cook’s throat, were not necessary to prevent a felony and that the evidence supported Kenny’s conviction for aggravated assault.

Decided April 21, 2011.

Mary Erickson, for appellant.

Daniel J. Porter, District Attorney, Frances B. Anderson, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P J., concurs. Ellington, C. J., concurs in judgment only.

       OCGA § 16-5-21 (a) (2).

       (Punctuation omitted.) Young v. State, 291 Ga. App. 460, 461 (662 SE2d 258) (2008).

       When the defense introduced copies of the Kennys’ bank statements, the trial court asked the prosecutor if “[t]he State would agree and stipulate that payments had been made.” The prosecutor replied, “That’s my understanding is that a payment was made.”

       OCGA § 16-3-24.2 provides that “[a] person who uses threats or force in accordance with Code Section . . . 16-3-23 . . . shall be immune from criminal prosecution therefor unless in the use of deadly force, such person utilizes a weapon the carrying or possession of which is unlawful by such person under Part 2 or 3 of Article 4 of Chapter 11 of this title.” We note that a trial court is required to make a pretrial determination of whether a defendant is entitled to immunity from prosecution under OCGA § 16-3-24.2. See Fair v. State, 284 Ga. 165, 165-166 (1) (664 SE2d 227) (2008); Lightning v. State, 297 Ga. App. 54, 56 (1) (676 SE2d 780) (2009). Here, it does not appear that Kenny filed a pretrial motion to dismiss the indictment based on immunity. Because, however, the trial court held a bench trial and because the State does not raise this issue, we decline to address it.

       See OCGA § 16-3-24.1.

       See Blazer v. State, 266 Ga. App. 743, 745 (2) (598 SE2d 338) (2004); Zachery v. State, 199 Ga. App. 891, 892 (406 SE2d 243) (1991). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-5-21 (a) (2).


author: Dillard, Judge.

text:
    A11A0094.
    HAMMONT v. THE STATE.
    (710 SE2d 598)
   Dillard, Judge.

Jonathan Thomas Hammont was convicted in a bench trial of possessing less than one ounce of marijuana. Prior to his conviction, Hammont moved to suppress evidence on the basis that law enforcement had no probable cause or reasonable articulable suspicion to search for drugs during the traffic stop that eventually led to his arrest. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the trial court’s judgment and findings, the record shows that Hammont was the passenger in a vehicle driven by his friend, Eric Schwartz. Unbeknownst to them, a county drug squad had issued a “be on the lookout” (BOLO) for the silver Pontiac Grand Prix driven by Schwartz because the squad had reason to believe that Schwartz and Hammont were involved in the illegal sale and use of prescription narcotics. As the two men were driving, they were spotted by an officer who had received the BOLO and knew that the vehicle was suspected to be in the residential area he was patrolling.

The officer pulled behind Schwartz’s vehicle, paced it, noticed it was traveling at 40 miles per hour in a 35-mile-per-hour zone, and subsequently pulled the car over. After the officer activated his emergency equipment, Schwartz continued driving for “quite a while,” passing what were, in the officer’s opinion, reasonably safe locations to stop. And when the vehicle eventually stopped and the officer approached, he noticed that Schwartz was “very nervous,” that his hands were shaking, and that he would not make eye contact with the officer. Based on the BOLO the officer had received from the drug squad, Schwartz’s nervous behavior, the amount of time that passed before the vehicle pulled over, and the fact that Schwartz eventually stopped the vehicle adjacent to bushes, the officer believed Schwartz and Hammont were engaged in drug activity.

Thereafter, the officer asked Schwartz for consent to search the vehicle, which was granted. During the course of this search, the officer discovered marijuana residue in the ashtray and in the passenger seat (where Hammont had been sitting) and rolling papers between the center console and the passenger seat. Hammont also consented to a urine test, which tested positive for marijuana use.

Prior to his bench trial, Hammont moved to suppress the evidence obtained through the traffic stop on the ground that his detention was illegally expanded due to the officer’s conversion of a routine traffic stop into a drug search without the requisite reasonable suspicion of other illegal activity. The trial court, however, found that the officer had reasonable, articulable suspicion to search Schwartz’s vehicle for drugs and, in conjunction with its decision to convict Hammont, it denied the motion to suppress. This appeal follows.

In reviewing a trial court’s decision on a motion to suppress, we construe the evidence “most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility of the witnesses are adopted unless they are clearly erroneous.” Further, “because the trial court is the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if any evidence supports them.” However, when evidence is “uncon-troverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.”

On appeal, Hammont contends (as he did below) that his detention “was illegally extended due to the State’s conversion of a routine traffic stop into a drug search absent the requisite reasonable suspicion of other illegal activity.” We disagree.

First, the stop of Schwartz and Hammont was valid. The officer’s observation that Schwartz’s vehicle was traveling 40 miles per hour in a 35-mile-per-hour zone authorized him to initiate the traffic stop. Moreover, the officer was on the lookout for Schwartz’s vehicle based on information relayed by the county drug squad, and he stopped the vehicle for a legal reason — i.e., the vehicle was speeding. And when an officer observes a traffic offense, the resulting traffic stop does not violate the Fourth Amendment “even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. ’ ’

Second, the stop was not illegally extended because “it does not matter whether the request to search comes during the traffic stop or immediately thereafter.” Indeed, the record shows that the officer asked Schwartz for his driver’s license and insurance upon approaching the vehicle, and it was at this point the officer observed that Schwartz refused to make eye contact and was noticeably shaking. After inquiring as to why Schwartz had taken so long to pull over, the officer asked for and received consent to search the vehicle. As the trial court correctly noted, there was no illegal detention “because [the questioning] was almost instantaneous,” and “all indications are that the search of the vehicle was by consent of the driver.” And even when there is no basis for an officer to suspect that a person detained at a traffic stop is engaged in criminal activity unrelated to the stop, “police may lawfully ask questions during the course of the stop about such unrelated activity, so long as the questioning does not prolong the stop beyond the time reasonably required to complete the purpose of the traffic stop.” And here, there is no evidence that the officer’s questions prior to receiving Schwartz’s consent imposed any substantive delay in the traffic stop of his vehicle.

Decided April 21, 2011.

Philip D. Price, for appellant.

David L. Cannon, Jr., Solicitor-General, for appellee.

Accordingly, for the foregoing reasons, we affirm the trial court’s denial of Hammont’s motion to suppress.

Judgment affirmed.

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

        See, e.g., Mays v. State, 306 Ga. App. 507, 507 (703 SE2d 21) (2010); Montoya v. State, 232 Ga. App. 24, 24 (499 SE2d 680) (1998).

       The officer testified that, in his experience, vehicle occupants sometimes delay pulling over to conceal contraband or to develop a fabricated story.

       The officer testified that, in his experience, when a vehicle stops beside bushes, this is often consistent with an attempt to toss contraband; however, the hushes in this case were never searched for contraband because the officer did not see either occupant toss anything from the car.

       The officer never located prescription narcotics, which was the basis of the BOLO.

        Montoya, 232 Ga. App. at 25 (1); see also State v. Menezes, 286 Ga. App. 280, 280 (648 SE2d 741) (2007) (same).

        Montoya, 232 Ga. App. at 25 (1); see also Menezes, 286 Ga. App. at 280.

        Menezes, 286 Ga. App. at 280 (citation and punctuation omitted).

       We note that, generally, when a passenger does not assert a possessory interest in a vehicle or the items found within, he or she has no standing to directly challenge a search of the vehicle. See, e.g., Menezes, 286 Ga. App. at 282 (2). But because a passenger has standing to challenge his or her own illegal seizure and detention in connection with a traffic stop, “and because evidence or contraband discovered in a search of the car during the traffic stop may be considered the fruits of the passenger’s illegal detention, the passenger may move to suppress the evidence or contraband and may thus indirectly challenge the search of the car.” Id. at 282 (1) (citation omitted).

        See Whren v. United States, 517 U. S. 806, 810 (II) (116 SC 1769, 135 LE2d 89) (1996) (“As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred.” (citation omitted)); Menezes, 286 Ga. App. at 282 (2) (“When the arresting officer observed a traffic violation, he was authorized to initiate a traffic stop.” (citation omitted)); Montoya, 232 Ga. App. at 25 (2) (a) (“[The defendant’s] act of following too closely authorized the stop.”); see also Berry v. State, 274 Ga. App. 831, 833 (2) (619 SE2d 339) (2005) (noting that while a driver may not be convicted for speeding unless traveling more than ten miles per hour over the speed limit, an officer may still stop a driver to warn him or her about speeding).

        Maxwell v. State, 249 Ga. App. 747, 748 (549 SE2d 534) (2001) (citations and punctuation omitted).

        Hayes v. State, 292 Ga. App. 724, 730 (2) (e) (665 SE2d 422) (2008).

        Hayes, 292 Ga. App. at 730 (2) (d) (citation and punctuation omitted); see also State v. Davis, 283 Ga. App. 200, 203 (2) (641 SE2d 205) (2007) (same).


text:
    A11A0167.
    WESTBROOKS v. THE STATE.
    (710 SE2d 594)
   Dillard, Judge.

Following a jury trial, Donald Westbrooks was convicted on one count of aggravated child molestation and three counts of child molestation. Westbrooks appeals his convictions and the denial of his motion for new trial, arguing that the evidence is insufficient to support his convictions and that the trial court erred in allowing one of the State’s witnesses to improperly bolster the victim’s credibility. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the evidence shows that in March 2006, five-year-old S. W came to live with her step-aunt and step-uncle after having previously lived with her father and Westbrooks, her uncle, at Westbrooks’s home for several months. About one month later, S. W. was watching her step-uncle cook hotdogs when she told him — after being asked whether she liked hotdogs — that she liked hotdogs but did not like “Uncle Donald’s hotdog.” When her step-uncle asked her to explain, S. W. told him that she was referring to Westbrooks’s privates and that he had touched her with them and had made her put her mouth on them. Alarmed by her disclosure, S. W’s step-aunt and step-uncle reported it to the police and took S. W. to a children’s hospital to meet with a forensic interviewer at the hospital’s child advocacy center.

Over the course of the next few months, S. W. met several times with a second forensic interviewer at a child advocacy center that was closer to her home. During those interviews, S. W disclosed that while she and her father were living at Westbrooks’s home, West-brooks pulled her pants down and touched her privates with his privates, touched her privates with his hand on at least two occasions, and made her put her mouth on his privates. S. W. also told this same interviewer, as well as her step-uncle, that Westbrooks made her watch movies that depicted men and women having sexual intercourse and instructed her not to tell anyone.

Thereafter, Westbrooks was arrested and indicted on one count of aggravated child molestation and three counts of child molestation of S. W During his trial, S. W testified that she and her father lived at Westbrooks’s home and that she had even slept in the same bed with Westbrooks while she lived there. She further testified that Westbrooks had touched her in a way that she did not like, but did not provide any details about the alleged sexual abuse. Nevertheless, S. W.’s step-uncle and the second forensic interviewer testified regarding S. W.’s detailed disclosures that Westbrooks sexually molested her. At the trial’s conclusion, the jury found Westbrooks guilty on the four counts pertaining to S. W Thereafter, Westbrooks filed a motion for new trial, which the trial court denied. This appeal follows.

1. Westbrooks contends that the evidence is insufficient to support his convictions of aggravated child molestation and child molestation, arguing generally that S. W.’s accounts of the abuse were inconsistent and lacked credibility. This contention is without merit.

When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine witness credibility “but only determine whether a rational trier of fact could have found the defendant [ ] guilty of the charged offenses beyond a reasonable doubt.” Accordingly, the jury’s verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.”

A person commits child molestation by doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” A person commits aggravated child molestation “when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” Finally, a person commits the crime of sodomy “when he or she performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.”

In this case, S. W. testified at trial that Westbrooks touched her in a way that she did not like, but she did not provide any details about those incidents. However, S. W’s step-uncle and one of the forensic interviewers proffered evidence that Westbrooks sexually molested S. W, pursuant to the Child Hearsay Act, which provides that

[a] statement made by a child under the age of 14 years describing any act of sexual contact . . . performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Specifically, both S. W.’s step-uncle and the forensic interviewer testified that S. W. disclosed that Westbrooks touched her privates with his hand and his own privates and forced her to place her mouth on his privates. Thus, there is competent evidence to support Westbrooks’s convictions of aggravated child molestation and child molestation.

Nevertheless, Westbrooks argues that S. W.’s reticence to provide any details of the sexual abuse during trial and inconsistencies in some of her out-of-court disclosures rendered the evidence against him insufficient. But “[c]onflicts between the victim’s testimony at trial and the victim’s out-of-court statements were for the jury to resolve.” Indeed, “[i]f a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child’s credibility.” Here, the jury obviously resolved any credibility or inconsistency issues against Westbrooks. Accordingly, Westbrooks’s challenge to the sufficiency of the evidence supporting his convictions lacks merit.

2. Westbrooks also contends that the trial court erred in allowing one of the forensic interviewers, who met with S. W, to proffer irrelevant evidence that improperly bolstered S. W.’s credibility. We disagree.

In Georgia “the credibility of a witness is to be determined by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness.” And “[¿Improper bolstering occurs when a witness gives an opinion as to whether another witness is telling the truth.”

In this case, during the State’s direct examination of the first forensic interviewer, who met with S. W. shortly after she disclosed the sexual abuse to her step-uncle, the following colloquy occurred:

Q. Okay. And was [S. W] reluctant to talk to you?
A. She would waver back and forth between being friendly and talking about stuff and then kind of shutting down and not wanting to talk about things.
Q. Okay. And is that normal?
A. Yes.
Q. Okay. Why is that normal?

But before the interviewer could answer, Westbrooks’s counsel objected, arguing that the testimony was irrelevant and thus, impliedly, bolstering — which the trial court overruled. The State’s prosecutor then asked the interviewer if S. W.’s reticence to talk about these issues was normal, and the interviewer responded:

Yes, it is. They’re — just met somebody they’ve never met before and now you’re talking about all this stuff. Kids tend to think they cause things. They tend to think they’ll be in trouble if they talk about things. There’s all kinds of reasons that children tell or don’t tell. Most — Most of the time when things happen with children, a lot of times they don’t tell because some of those reasons: they’re afraid; they’re afraid of what’s going to happen; they’re afraid of what it means; they don’t understand about it; they’re just confused about things.

Later during the direct examination, the interviewer began to explain why it was normal for children not to provide full disclosure during a forensic interview when Westbrooks’s counsel objected on the ground that the interviewer had not been tendered as an expert. At the State’s request, the trial court allowed the interviewer to testify as an expert “in the areas of forensic interview and interview of children.” Subsequently the interviewer continued her explanation, responding:

Well, a lot of times children don’t initially tell because of all the — the things that I said earlier. They are confused or afraid of [sic] they’re told not to tell or they think they did something wrong. When kids do tell, they tend to tell a little bit and then stop and maybe tell a little bit more. Frequently, kids will tell you so much and then they’re just not going to go any further. . . .

Contrary to Westbrooks’s contention, the first forensic interviewer’s testimony was relevant and did not directly address S. W’s credibility or express a direct opinion that S. W. had been sexually abused. Moreover, “the fact that such testimony may also indirectly, though necessarily, involve the child’s credibility does not render it inadmissible.” As such, the forensic interviewer’s testimony did not improperly bolster S. W.’s credibility or address the ultimate issue before the jury. Accordingly, the trial court did not abuse its discretion in admitting the testimony over Westbrooks’s objection.

Judgment affirmed.

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

Decided April 21, 2011.

Kathleen J. Anderson, for appellant.

J. Bradley Smith, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

        See, e.g., Goolsby v. State, 299 Ga. App. 330, 330-31 (682 SE2d 671) (2009); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       In the same indictment, Westbrooks was also charged with one count of aggravated child molestation and one count of child molestation of his former girlfriend’s young son, but he was acquitted of these charges by the same jury that convicted him of sexually abusing S. W

        See, e.g., English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010).

        Lott v. State, 303 Ga. App. 775, 775-76 (1) (694 SE2d 698) (2010) (citing Jackson, 443 U. S. at 319 (III) (B)).

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

       Ga. L. 1997, p. 1578, § 1 (current version OCGA § 16-6-4 (a) (1) (2009)).

       Ga. L. 1997, p. 1578, § 1 (current version OCGA § 16-6-4 (c) (2009)).

       Ga. L. 2000, p. 1346, § 1 (current version OCGA § 16-6-2 (a) (2006)).

       OCGA § 24-3-16.

        See, e.g., Bright v. State, 301 Ga. App. 204, 205 (1) (687 SE2d 208) (2009); Herring v. State, 288 Ga. App. 169, 170 (1) (653 SE2d 494) (2007).

        Newton v. State, 296 Ga. App. 332, 335 (1) (a) (674 SE2d 379) (2009) (citation omitted); see also Amerson v. State, 268 Ga. App. 855, 855 (1) (602 SE2d 857) (2004) (same).

        Amerson, 268 Ga. App. at 855 (1) (citation omitted).

        See Bright, 301 Ga. App. at 206 (1) (affirming defendant’s child molestation conviction despite alleged inconsistencies and questions about victim’s credibility).

        Stillwell v. State, 294 Ga. App. 805, 806-07 (2) (a) (670 SE2d 452) (2008) (punctuation and footnote omitted).

        O’Neal v. State, 304 Ga. App. 548, 553 (2) (b) (696 SE2d 490) (2010) (citation omitted).

       Despite his initial objection, on appeal, Westbrooks does not challenge the forensic interviewer’s qualifications to testify as an expert.

        Mullis v. State, 292 Ga. App. 218, 220 (3) (b) (664 SE2d 271) (2008) (citation and punctuation omitted); see Howell v. State, 278 Ga. App. 634, 643 (8) (629 SE2d 398) (2006) (same); Odom v. State, 243 Ga. App. 227, 229 (1) (a) (531 SE2d 207) (2000) (same).

        See O’Neal, 304 Ga. App. at 553 (2) (b) (holding that expert’s testimony about the dynamics of child sexual abuse disclosure was not improper bolstering); Pearce v. State, 300 Ga. App. 777, 785 (6) (686 SE2d 392) (2009) (holding that a nurse practitioner’s general testimony about behavior associated with child sexual abuse accomodation syndrome, including secrecy, fear, and confusion, did not constitute improper bolstering); Osborne v. State, 291 Ga. App. 711,
        714 (3) (662 SE2d 792) (2008) (holding that forensic interviewer could properly testify that child’s “singsong manner of responding” to interviewer’s questions was not consistent with child being coached).


author: Ellington, Chief Judge.

text:
    A11A0710.
    HERNDON v. THE STATE.
    (710 SE2d 607)
   Ellington, Chief Judge.

A DeKalb County jury found Cornelius Herndon guilty beyond a reasonable doubt of felony theft by shoplifting, OCGA § 16-8-14 (a) (1), (b) (2). He appeals from the denial of his motion for new trial, contending that he received ineffective assistance of trial counsel. Finding no error, we affirm.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001). Further, “[w]hether an attorney’s trial tactics are reasonable is a question of law, not fact.” Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003).

The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case[,] . . . [and] appellate courts are generally reluctant to reverse a case on the ground of ineffective assistance where the complaint urged can reasonably be construed as involving defense counsel’s trial strategy.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 634 (1) (667 SE2d 899) (2008). Finally, “failure to make a meritless argument does not constitute ineffective assistance of counsel.” (Footnote omitted.) McCoy v. State, 285 Ga. App. 246, 249 (4) (b) (645 SE2d 728) (2007).

1. Herndon contends that his trial counsel rendered ineffective assistance because, during closing arguments, she failed to object when the prosecutor allegedly vouched for the truthfulness of the testimony of the State’s sole witness, the loss prevention officer (“LPO”) of the store where the theft occurred. Specifically, he complains about the prosecutor’s statements to the jury that the LPO is “telling you the truth. He is telling you the truth. He gets up there and he is telling you the truth.”

According to the LPO’s trial testimony, on May 16, 2008, the LPO observed Herndon taking clothing from the store’s racks and concealing it in a shopping bag from a different store. As Herndon was attempting to leave the store without paying for the goods, the LPO stopped him and told him that he needed to come to the back office. Herndon apologized to the LPO and handed him the bag. The LPO took Herndon to the store’s security office, filled out an evidence sheet and incident report, and contacted police officers, who arrested Herndon. The LPO also testified that the value of the stolen goods was $487.95. In addition, he narrated the store’s security videotape as it was played for the jury; according to the transcript, the videotape showed Herndon taking security sensors off of clothing, dropping the clothes onto the floor, “balling up” the clothes and concealing them in a plastic bag, and then walking toward the store’s exit. During trial counsel’s thorough cross-examination of the LPO, she challenged the accuracy and credibility of his testimony regarding what he observed Herndon doing in the store, how many items were taken and the price of those items, the accuracy of his incident report, and other material facts.

Later, during closing arguments, the prosecutor argued that the LPO did not know Herndon before the day of the arrest, that the LPO would have been reprimanded or fired if he had randomly stopped customers among the hundreds of people in the store that day and accused them of shoplifting, and that the LPO did not receive any extra compensation based upon the number of shoplifters he detained or the value of the merchandise in those incidents.

The prosecutor argued that, as a result, the LPO had no incentive to lie about what he observed Herndon doing, nor did he have any reason to jeopardize his career by lying at trial. Thus, when read in context, the prosecutor’s statements to the jury that the LPO “is telling you the truth” were suggestions to the jury of inferences they could draw from the evidence presented and were made in response to trial counsel’s attack on the LPO’s credibility during cross-examination.

The transcript also shows that, during trial counsel’s closing arguments, she argued that the LPO had limited job experience, recited in detail alleged inconsistencies in his trial testimony, and asserted that the LPO had lied to the arresting officer, lied to the judge who issued the arrest warrant, falsified his incident report, and lied during his trial testimony. In fact, counsel summarized her challenge to the LPO’s credibility by repeatedly stating, “He’s not telling you the truth.”

“Closing arguments are judged in the context in which they are made.” (Citation omitted.) Adams v. State, 283 Ga. 298, 302 (3) (e) (658 SE2d 627) (2008). “As a general rule, prosecutors are granted wide latitude in conducting closing argument, and defining the bounds of such argument is within the trial court’s discretion. This wide latitude encompasses the prosecutor’s ability to argue reasonable inferences raised by the evidence.” (Citations and punctuation omitted.) Brown v. State, 293 Ga. App. at 637-638 (1) (d) (ii). Thus, although “[i]t is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness[,] ... it is not improper for counsel to urge the jury to draw such a conclusion from the evidence.” (Citation and punctuation omitted.) Adams v. State, 283 Ga. at 302 (3) (e). Further, both the State and defense counsel “may address during closing argument the possible motives for a witness’s testimony.” (Citation omitted.) Allen v. State, 277 Ga. 502, 504 (3) (d) (591 SE2d 784) (2004) (The prosecutor’s argument during closing that a witness had no reason to lie was in response to a claim by another witness that the first witness had lied; in this context, the comment did not constitute the prosecutor’s personal opinion regarding the veracity of the witness.).

Reviewing the prosecutor’s closing argument in this case as a whole, and specifically looking at the challenged statements in context, we conclude that the prosecutor was not offering his personal belief about the veracity of the LPO, but instead was arguing that, based on the evidence presented and the reasonable inferences drawn therefrom, the jury should conclude that he was telling the truth. Manley v. State, 284 Ga. 840, 844-845 (2) (b) (672 SE2d 654) (2009); Adams v. State, 283 Ga. at 302 (3) (e). Because such an argument is permissible, trial counsel’s failure to object to it cannot serve as the basis for an ineffective assistance claim. Adams v. State, 283 Ga. at 302 (3) (e); Brown v. State, 293 Ga. App. at 638 (1) (d) (ii).

2. Herndon also contends that trial counsel was ineffective for failing to object to the prosecutor’s comments during closing arguments regarding Herndon’s decision not to take the stand and testify at trial. Pretermitting whether the prosecutor made improper comments of this nature during his closing arguments, the transcript of the motion for new trial hearing shows that appellate counsel never asked trial counsel why she did not object to the statements. Therefore, because trial counsel was never asked to explain her failure to object during the motion hearing, Herndon has failed to meet his burden of making an affirmative showing that the purported deficiencies in trial counsel’s representation “were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.” (Citations and punctuation omitted.) Morgan v. State, 275 Ga. 222, 227 (10) (564 SE2d 192) (2002). Accordingly, the trial court’s finding that Herndon received effective assistance of counsel was not clearly erroneous. Id.

Decided April 21, 2011.

Hollowell, Foster & Herring, Jolanda E. Herring, for appellant.

R. Javoyne Hicks White, District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The videotape is not in the appellate record.

       In fact, during the hearing on Herndon’s motion for new trial, trial counsel explained that she did not object to the challenged statements because she believed that they were a proper response to her attacks on the LPO’s credibility and that they rebutted her assertions about the LPO’s motives for testifying and his possible bias.

       See also Manley v. State, 284 Ga. 840, 844-845 (2) (b) (672 SE2d 654) (2009) (After defense counsel argued that the State and its witnesses had improperly targeted the defendant and had purposely and wrongfully manipulated the evidence, the State was entitled to respond to these direct accusations of wrongdoing. In so doing, the State argued that the investigators, officers, and the prosecuting attorney, all of whom had longstanding careers with the State, had no motivation to jeopardize those careers by framing the defendant through the manipulation of evidence and poisoning of witnesses. The Supreme Court ruled that the State’s comments did not constitute an opinion about the veracity of these witnesses, but merely urged the jury to make a deduction about their veracity from the evidence presented.).

       For example, when talking to the jury about the meaning of “reasonable doubt,” the prosecutor told them that “reasonable doubt is not beyond all doubt” and is “not a mathematical certainty.” The prosecutor then told the jurors that, “You don’t have to be a hundred percent sure that [Herndon] didn’t [commit this crime], because the only two people that are a hundred percent sure that this happened is the defendant Cornelius Herndon and the loss prevention officer, Officer Williams.” Thus, when read in context, this statement is not an improper comment on Herndon’s failure to testify, as Herndon argues on appeal. See Odom v. State, 304 Ga. App. 615, 616-617 (1) (697 SE2d 289) (2010) (The prosecutor told the jury that “the only two people who have information about [what happened on the night of the crime] are Officer Pippen and Mr. Odom[,]” and that the officer is “the only one that was out there other than Mr. Odom when the gun [was] pointed at him. And he’s told you what happened. He has the best means and the best opportunity to know that about which he’s testifying. He’s it. He’s it other than Mr. Odom.” This Court held that the comments were not an improper reference to the defendant’s failure to testify and, thus, counsel’s failure to object to the comments did not constitute ineffective assistance.).