author: Adams, Judge.

text:
    A11A1544.
    TWIGGS v. THE STATE.
    (726 SE2d 680)
   Adams, Judge.

A jury convicted Robert Twiggs on one count each of aggravated child molestation, aggravated sexual battery, child molestation, rape, statutory rape, and incest involving his stepdaughter. Twiggs appeals the trial court’s denial of his motion for new trial. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence showed that Twiggs met the victim’s mother in 1998 when the girl was approximately six years old. The family lived in Valdosta until 2006 when they moved to Henry County, where the charges in this case were filed. The victim testified that IWiggs began playing games with her when she was about seven years old, games that always ended with Twiggs sticking his private part in her bottom. Twiggs told the victim not to tell anyone what he did to her because he and his family in New York were in the Mafia, and they would kill everyone in her family. The victim was 15 when the family moved to Henry County, and Twiggs began putting his private part, and sometimes his fingers, in her private part or put his private part into her mouth. This happened two to three times per week.

The victim’s mother observed Twiggs with the victim at odd hours in the morning when they lived in Henry County, and when the family was still living in Valdosta, the victim’s younger brother saw Twiggs doing something to the victim’s private area on one occasion, when the victim was wearing only a black tank top. Twiggs told the brother that he was checking to see if she was pregnant. Twiggs and the victim’s mother eventually split up, and when, approximately three to four months later, the victim told her mother about these events, her mother contacted the police.

1. Twiggs asserts that he received ineffective assistance of counsel at trial when his attorney (a) failed to challenge the search of his computer as illegal under OCGA § 17-5-24 and (b) failed to object to testimony that improperly bolstered the credibility of the victim and expressed an impermissible opinion as to truthfulness.

To establish his claims of ineffective assistance of counsel, Twiggs must show both that trial counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Thomas v. State, 291 Ga. App. 795, 804 (6) (662 SE2d 849) (2008). “Failure to satisfy either prong of the two-part Strickland test is fatal to an ineffective assistance claim.” (Footnote omitted.) Nelson v. State, 302 Ga. App. 583, 586 (2) (691 SE2d 363) (2010). Moreover,

[i]n reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010).

(a) Twiggs asserts that his trial counsel should have challenged the search of his computer because it was conducted by an employee of the Federal Bureau of Investigation (“FBI”), not a Georgia peace officer, which he contends was required under OCGA § 17-5-24. That statute provides that “[t]he search warrant shall be issued in duplicate and shall be directed for execution to all peace officers of this state. However, the judicial officer may direct the search warrant to be executed by any peace officer named specially therein.” OCGA § 17-5-24.

At trial, Detective Amanda McCord of the Henry County Police Department testified that on February 15, 2008, she applied for and obtained a search warrant for Twiggs’s place of employment to look for computers and other storage media belonging to Twiggs. The search warrant was directed to: “All Peace Officers of the State of Georgia,” and McCord conducted the search pursuant to the warrant the same day. That search yielded a Dell desktop computer and a Dell laptop, which was located in a book bag on Twiggs’s person. Detective Kelli Bowles Owen of the Henry County Police Department, and a former member of the FBI’s Safe Child Task Force, testified that she sought a second search warrant on February 19, 2008 to obtain authority for a computer specialist to conduct a forensic search of the computers to look for evidence related to child pornography and child molestation. Owen’s affidavit asked for permission to conduct an off-site search of the hardware and to use “whatever data analysis techniques appear necessary to locate and retrieve the evidence described ...” The subpoena signed by the magistrate was directed to: “All Peace Officers of the State of Georgia,” but it specifically authorized a search of the computers held by the Henry County Police to be conducted as described in the affidavit provided by Detective Owen. Detective McCord testified that she transported the computers to the FBI for forensic evaluation.

The forensic examination, which apparently occurred at the FBI forensic lab in Atlanta, was conducted by Orlando Figueroa, an FBI forensic computer examiner. Figueroa undertook the examination in response to a police request “to provide a way for the investigator to analyze it for child pornography content.” Figueroa preserved the evidence, catalogued it in a useable way, and presented it to the investigator to conduct the investigation. He also ran it against a database of known victims of child pornography maintained by the Child Victim Identification Program at the National Center for Missing and Exploited Children. But after argument among the parties, the State chose not to introduce the results of that comparison. Instead, Figueroa testified only that nude photographs, which the victim previously had identified as pictures taken of her by Twiggs, appeared on Twiggs’s laptop in a file labeled “dangerous.”

At the hearing on the motion for new trial, Twiggs’s trial attorney testified that he originally filed a motion to suppress the evidence seized in the case, but withdrew it after reviewing the search warrants and determining that they appeared to be in order. But trial counsel testified that at the time he made the decision to withdraw the motion to suppress, he was not aware of the requirement under OCGA § 17-5-24 that search warrants be issued to all peace officers in the state. He stated that had he known of that requirement and had he determined that the FBI employee who conducted the search had not been deputized in Georgia, he would have pursued a motion to suppress.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Biggs v. State, 281 Ga. 627, 631-632 (4) (b) (642 SE2d 74) (2007). Twiggs failed to make such a showing.

Twiggs argues that the evidence from the computers was subject to suppression because Figueroa was a civilian computer analyst, not a Georgia peace officer, and thus he could not execute the search warrant within the requirements of OCGA § 17-5-24. But this Court has previously recognized that civilians, acting under the supervision of police, can properly execute a search warrant. Bradford v. State, 184 Ga. App. 459, 460 (1) (361 SE2d838) (1987) (no violation of OCGA § 17-5-24 when contraband located by private citizens known as “reserve deputies” where they were closely supervised by police and their activities circumscribed). And the Supreme Court of Georgia has considered and rejected Twiggs’s argument in the context of a forensic dental examination conducted by a private dentist. As the Supreme Court noted, “it would be unreasonable to suggest that the actual physical gathering of the evidence, utilizing equipment and procedures requiring expert skill and having a high potential for harm to the person being searched, must be done by peace officers.” Harris v. State, 260 Ga. 860, 863 (3) (401 SE2d 263) (1991). While presumably no potential for human injury existed in the forensic computer analysis, it cannot be disputed that the analysis required expert skill and without such expertise, it is conceivable that evidence may have been overlooked or even destroyed. Moreover, the computer examination was conducted at the direction of Georgia peace officers to enable them to complete their own investigation. Cf. State v. Harber, 198 Ga. App. 170 (401 SE2d 57) (1990) (where county officers are present with the warrant at search locale, mere fact that actual physical acts involved in conducting search of the premises may have been performed by campus police does not mean that the search warrant was not executed jointly by campus and county officers). We conclude, therefore, that no basis existed under OCGA § 17-5-24 for suppressing the results of that analysis.

(b) Twiggs next asserts that his trial counsel was deficient in failing to object to Detective McCord’s testimony regarding her forensic interview with the victim. When the State asked McCord whether the victim was “forthcoming with the information she provided ... in the interview,” McCord replied that she was. Twiggs contends that this testimony was improper bolstering.

It is well settled that a witness’s credibility may not be bolstered by “the opinion of another, even an expert, as to whether the witness is telling the truth. ... Credibility of a witness is ... a matter solely within the province of the jury. OCGA § 24-9-80.” State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988). And in support of this argument, Twiggs relies upon Brown v. State, 260 Ga. App. 77 (579 SE2d 87) (2003). In that case “[b]efore the victim was called to testify, the State called her fiancé and, over objection, asked him to ‘describe (the victim) as far as her truthfulness, her honesty.’ The fiancé responded, ‘in relation to me she has been forthcoming.’ ” Id. at 79 (2). The Court found “no appropriate reason for admitting the fiancé’s testimony regarding the victim’s general veracity.” Twiggs seizes upon the use of the word “forthcoming” in both cases to argue that we are bound by this holding in Brown. But even with that holding, the Court in Brown, “[nonetheless, [found] no grounds for reversal because it is highly improbable that the fiancé’s testimony contributed to the verdict” (footnote omitted) in light of the victim’s own testimony that she had lied to her fiancé in the past about her drug use. Id. at 80 (2). Given this evidence, the Court “doubt[ed] the jury was overly swayed by the fiancé’s testimony that the victim was always forthcoming with him.” Id. at 80 (2).

As in Brown, we consider McCord’s testimony in the context of other evidence at trial. The question here arose in the immediate context of a line of questioning about the nature of forensic interviews and McCord’s technique for conducting such interviews. After the prosecutor asked McCord to explain the term “forensic interview” the examination proceeded as follows:

A: A forensic interview is a specific interview and it is typically only conducted by trained investigators where you try to gather evidence in a case. The interview itself becomes evidence or the information given to you by who you’re interviewing becomes evidence.
Q: Are questions posed a certain way in that type of interview?
A: Absolutely. We do not lead or suggest. There are — we’re specifically trained there’s a difference between a leading question and a suggestive question. Depending upon the age of the child questions are posed differently. With a teenage child you just have to be very careful not to lead or suggest.
Q: This is the type of interview you conducted with [the victim]?
A: Yes.
Q: When you finish this you prepare a report that’s submitted to the prosecutor, correct?
A: Yes.
Q: Was she forthcoming with the information that she provided you in the interview?
A: Yes, she was.

The prosecutor then asked McCord what steps she took next in her investigation, to which McCord ultimately replied that she applied for the search warrant for Twiggs’s place of employment. Notably, McCord did not describe what information the victim told her in the forensic interview. At the hearing on the motion for new trial, Twiggs’s trial counsel said that he did not recall the question. He did not think, however, that he would have raised an objection, not for any strategic reason, but because he was unaware of the Brown case.

We find Brown to be distinguishable, however, when the question here is considered in context. After confirming that McCord did not employ improper questioning techniques, the prosecutor asked whether the victim was forthcoming with information during the interview and then asked what McCord did next. Thus, the question appears to have been directed at determining whether the victim provided information that led to further investigation, not at determining whether McCord believed the victim was telling the truth. At most, McCord’s testimony addressed how the victim delivered the information, and thus it “addressed only [McCord’s] objective observations of [the victim’s] behavior, not whether she found [the victim’s] statements believable or credible.” (Citation and punctuation omitted.) Damerow v. State, 310 Ga. App. 530, 537 (4) (a) (ii) (714 SE2d 82) (2011). And, in fact, after Twiggs’s counsel raised a hearsay objection, McCord was careful not to divulge any specifics about what she learned in that interview. Accordingly, we find no error in trial counsel’s failure to raise an objection to this testimony as improper bolstering.

2. Twiggs contends that the trial court erred in allowing the State to introduce, without laying a proper foundation, a printed copy of an e-mail that was located in his car at the time of his arrest. We review the trial court’s admission of this evidence for an abuse of discretion. Whitehead v. State, 258 Ga. App. 271, 275 (1) (d) (574 SE2d 351) (2002).

The printed e-mail was introduced into evidence after McCord testified only that it was found during a search of Twiggs’s car. The trial court admitted the document over Twiggs’s foundational objection following an off-the-record colloquy among the judge and counsel. The document in question appears to be an e-mail forwarding an attached photograph depicting a clothed female backside, a photograph the victim previously had identified as being a photograph of her taken by Twiggs in their Henry County bathroom. Twiggs argues that McCord’s testimony was insufficient to lay a foundation for the introduction of the e-mail printout.

As a general rule, a writing will not be admitted into evidence unless the offering party tenders proof of the authenticity or genuineness of the writing. There is no presumption of authenticity, and the burden of proof rests upon the proffering party to establish a prima facie case of genuineness.

(Footnote omitted.) Hollie v. State, 298 Ga. App. 1, 3 (1) (679 SE2d 47) (2009). And “it has been held that the face of the writing itself, such as the contents, the letterhead, the signature, etc., does not authenticate [a document] in the absence of other evidence showing its genuineness.” (Citation omitted.) Martin v. State, 135 Ga. App. 4, 7 (3) (217 SE2d 312) (1975). Thus, in the case of an e-mail printout, elements such as website identifiers and e-mail addresses alone would not serve to self-authenticate the e-mail. See Hollie v. State, 289 Ga. App. at 3 (1) (trial court properly excluded e-mail from evidence where victim identified the sending e-mail address as hers, but denied sending the e-mail). In any event, no evidence was presented in this case identifying any of the e-mail addresses reflected on the printout.

Moreover, the fact that the printout was found in Twiggs’s car, standing alone, was not sufficient to authenticate the document. Martin v. State, 135 Ga. App. at 7-9 (3) (page torn from notebook on defendant’s person inadmissible without authentication). Compare State v. Smith, 246 Ga. 129, 130 (269 SE2d 21) (1980) (writing admissible where it was found on one defendant’s person, writing circumstantially linked defendant to crime, was signed “Danny,” and contained references to circumstances which were peculiarly within the knowledge of defendants’ brother Danny, who previously had pled guilty to same crime).

Accordingly, the trial court erred in admitting the e-mail printout without requiring the state to lay a foundation to establish that it was genuine. But we find this error to be harmless under the circumstances of this case. “The test for harmless error in a criminal case is whether it is highly probable that the error did not contribute to the judgment.” (Citations and punctuation omitted.) Long v. State, 265 Ga. App. 605, 607 (1) (595 SE2d 93) (2004). Twiggs was not charged with any offenses relating to the e-mail, the photograph, or the transmission of the photograph. And the victim had already identified the photograph as one Twiggs had taken of her with his phone, and other copies of the photograph were already in evidence based upon this testimony. In addition, other evidence demonstrated that Twiggs had nude pictures of the victim’s backside on his computer. The picture attached to the e-mail depicts only a clothed female backside. Accordingly, the e-mail printout was merely cumulative, and its admission was harmless error. See Dillard v. State, 272 Ga. App. 523, 526 (3) (612 SE2d 804) (2005); Long v. State, 265 Ga. App. at 607 (1). See also Wright v. State, 259 Ga. App. 74, 78 (4) (576 SE2d 64) (2003) (Generally, “[t]he admission of cumulative evidence is harmless.”) (Citation and punctuation omitted.)

3. Twiggs next contends that he was denied his right to a speedy trial pursuant to OCGA § 17-7-170.

' Twiggs’s trial attorney filed a written demand for a speedy trial on June 25, 2008, which would have required that he be tried by December 2008. See OCGA §§ 15-6-3 (18); 17-7-170. Twiggs’s case was scheduled for trial on November 3,2008, and the State announced ready. But Twiggs’s attorney stated that the State had just provided him that morning with exculpatory medical evidence necessitating that he announce “not ready” for trial. The trial court gave him an additional week. Then on November 10, 2008, Twiggs’s trial counsel announced that Twiggs was withdrawing his speedy trial demand and joining with the State in a motion for a continuance until the December calendar.

At the hearing on the motion for new trial, Twiggs’s trial counsel stated that he made the announcement in open court after discussing the matter with Twiggs either in person at the courthouse or in a phone call. He could not recall, however, whether Twiggs was present in court when he made the announcement. The attorney also could not recall why they made the decision to withdraw the speedy trial demand. Twiggs testified, however, that he asked his attorney to file the original speedy trial demand, and the attorney never discussed withdrawing that demand. Twiggs said he was not in court when his attorney withdrew that demand and, in fact, he did not learn that the demand had been withdrawn until mid-2009.

But Twiggs’s trial counsel also recalled “a number of times” when the case would be called for trial, and Twiggs would come up with new information, necessitating that they announce “not ready” for trial. On one occasion in August 2009, the parties had actually picked a jury “and the Court was kind enough to dismiss that jury when [his] client told him of some new information that later proved to be untrue.” On that occasion, Twiggs told the court that he was “not prepared for his case right now.” His case eventually went to trial on October 5, 2009.

If the defendant is not tried when the demand for speedy trial is made or at the next succeeding regular court term thereafter, provided that at both court terms there were juries impaneled and qualified to try the defendant, the defendant shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.

OCGA§ 17-7-170 (b). But

[i]f the failure to try the defendant results from a voluntary act of the defendant or the defense counsel which results in a continuance of the case to a time outside the period of the demand, however, discharge and acquittal are not required. In such cases, the defendant will be found to have waived his demand for a speedy trial. The burden of showing such waiver is on the State.

(Citations omitted; emphasis supplied.) Sykes v. State, 236 Ga. App. 518, 520 (2) (511 SE2d 566) (1999). Here, Twiggs’s counsel announced that the demand for speedy trial was withdrawn, and the record in this case supports a finding that counsel made this announcement only after consulting Twiggs. Moreover, counsel announced that Twiggs was making a joint motion with the State for a continuance, and “[a] request for a continuance following a demand for a speedy trial [may] operate [ ] as a waiver of the demand under Georgia law.” (Footnote omitted.) Breazeale v. State, 290 Ga. App. 632, 637 (11) (660 SE2d 376) (2008). We conclude, therefore, that the State carried its burden of demonstrating that Twiggs waived his demand for a speedy trial.

Decided March 27, 2012.

Amanda R. Flora, for appellant.

Tommy K. Floyd, District Attorney, David E. Slemons, Alicia C. Gant, Assistant District Attorneys, for appellee.

Although the record is unclear as to whether Twiggs was present when his attorney made this announcement, we know of no requirement that the client be present for the voluntary act by his counsel that results in such a waiver. Thus, for example, our appellate courts have found that a speedy trial demand can be waived by an attorney’s failure to file the proper paperwork to excuse his absence in reporting for trial. Jones v. State, 276 Ga. 171, 174 (575 SE2d 456) (2003) (filing defective notice of leave of absence); Linkous v. State, 254 Ga. App. 43, 47 (561 SE2d 128) (2002) (failure to file proper notice of leave); Oni v. State, 268 Ga. App. 840, 841 (602 SE2d 859) (2004) (counsel failed to appear at calendar call, to file conflict letter and to notify court when conflicting trial was concluded). Accordingly, we find no abuse of discretion in the trial court’s denial of the motion for new trial on this ground. See Williams v. State, 277 Ga. 598, 599 (1) (592 SE2d 848) (2004) (applying abuse of discretion standard in reviewing motion on speedy trial grounds and noting that the trial court’s findings and weighing of disputed facts is given deference on appeal).

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence....” (Footnote omitted.) Brown v. State, 274 Ga. App. 302 (1) (617 SE2d 227) (2005).

       Moreover, we note that Twiggs’s trial counsel objected vigorously to Figueroa’s testimony on other grounds, including an objection to the introduction of any hearsay evidence from the comparison with the child pornography database, which led to the State’s decision not to introduce the results of that comparison.


source: Caselaw Access Project

license: Public Domain

text:
    A11A1709.
    FORD v. REYNOLDS.
    (726 SE2d 687)
   Adams, Judge.

Plaintiff/appellant Beverly Ford appeals from the trial court’s order granting summary judgment to defendant/appellee Harriet Reynolds.

The record shows that in February 2004, Harold Mobley named Reynolds, along with his wife Helen, as his attorney-in-fact. Helen subsequently died, leaving only Reynolds in that role. The power of attorney granted Reynolds broad powers, including the authority to manage Mobley’s real and personal property, and Mobley never took any action to terminate, revoke or restrict those powers in any way. The power of attorney also entitled Reynolds to make gifts to herself, not to exceed the greater of $5,000 or five percent of the value of all property subject to the power of attorney.

In August 2008, Mobley changed the beneficiary on an IRA account and an investment securities account he had at Wachovia Securities LLC (collectively referred to as the “Wachovia accounts”) from his estate to Ford. The next month, he changed the beneficiary back to his Estate. Mobley, who was 83 years old, fell in November 2008 and was hospitalized until December 2, 2008, when he was transferred to a nursing home. On that same date, Mobley once again changed his beneficiary on the Wachovia accounts from his Estate to Ford. On December 12, 2008, Mobley was moved back to the hospital after he developed a urinary tract infection, but was transferred back to the nursing home a short time later.

Around December 12,2008, Reynolds contacted Wachovia Securities concerning Mobley’s accounts and on December 15, 2008, Reynolds sent a letter to Mobley’s doctor at the nursing home, requesting that he provide her with a letter stating that Mobley was unable to manage his affairs. Reynolds explained in her request that she needed the letter so that she could ascertain the status of Mobley’s accounts at Wachovia and other financial institutions in order that arrangements for paying for his care could be made. In response, the doctor provided Reynolds with a letter stating that Mobley was mentally and physically unable to handle any of his personal and financial affairs and that those matters should be handled by Reynolds, as his attorney-in-fact, instead.

On or about January 6, 2009, Reynolds contacted Wachovia Securities and learned for the first time that Mobley had designated Ford as his beneficiary on the Wachovia accounts. The bank also informed Reynolds that Mobley had made three changes concerning the beneficiary on those accounts since August 2008. Over the next several days, Reynolds consulted with Mobley’s family and, pursuant to the power of attorney, changed the beneficiary back to the Estate on the IRA account, requested certain checks be written from the Securities Investment account, including one to the nursing home, one to a funeral home for “pre-arrangements,” one to a law firm for handling estate matters, and one to herself in the amount of $5,000, as authorized by the terms of the power of attorney. Additionally, Reynolds took the remainder of the funds from that account as well as the funds from the surrender of an annuity and placed those funds in another financial institution where she could write checks on the funds, instead of having to request that the bank issue the checks.

Harold Mobley died a few days later on January 12, 2009. After learning that she was no longer named as the beneficiary on the Wachovia accounts, Ford filed suit against Wachovia on March 4, 2009, contending that she was entitled to damages for the alleged tortious interference with her economic expectancy in the accounts. Ford subsequently moved to add Reynolds as a defendant and filed an amended complaint asserting her claim for wrongful interference with an economic expectancy against both Wachovia and Reynolds. She also asserted a separate claim against Reynolds contending that Reynolds breached her obligations to Mobley by using the power of attorney to defeat Mobley’s gifts to Ford and by making a gift to herself shortly before he died.

Reynolds filed a motion for summary judgment, and the trial court granted the motion on the basis that Ford had failed to prove several of the essential elements of her claim of intentional interference with an economic expectancy. Further, the trial court also granted summary judgment on Ford’s claims that Reynolds breached her obligations surrounding her use of the power of attorney, finding that Reynolds owed no duty to Ford and that Ford lacked standing to bring a claim against Reynolds for any duty Reynolds owed to Mobley. Because we agree that Reynolds was entitled to summary judgment on Ford’s claims, we affirm.

Almost 100 years ago, our Supreme Court set forth the elements of a cause of action based on tortious interference with an economic expectancy:

[Wjhere an intending donor, or testator, or member of a benefit society has actually taken steps toward perfecting the gift, or devise, or benefit, so that if let alone the right of the donee, devisee, or beneficiary will cease to be inchoate and become perfect, we are of the opinion that there is such a status that an action will lie, if it is maliciously and fraudulently destroyed, and the benefit diverted to the person so acting, thus occasioning loss to the person who would have received it.

(Emphasis supplied.) Mitchell v. Langley, 143 Ga. 827, 835 (85 SE 1050) (1915). See also Morgan v. Morgan, 256 Ga. 250, 251 (1) (347 SE2d 595) (1986) (quoting the holding in Mitchell).

In granting summary judgment to Reynolds, the trial court found that the evidence on at least two of the essential elements of Ford’s claim against Reynolds was lacking. First the trial court held that “[c]ontrary to what [Ford] would have to prove, the evidence shows that Reynolds acted in good faith, without any malice or fraud” and noted specifically that Reynolds had acted in Mobley’s best interest and for his benefit, after consulting his family and on the advice of counsel. Further the trial court found that Reynolds, who was neither Mobley’s heir nor a beneficiary of Mobley’s estate, did not receive any benefit from the actions she took in regard to the Wachovia accounts.

On appeal, Ford contends that the trial court erred by holding that she was required to show that Reynolds benefitted from her alleged tortious interference with the expected gift in order to recover, by holding that Reynolds was not liable for such tortious interference because of the power of attorney, and because genuine issues of material fact exist which preclude the grant of summary judgment. However, as more fully set forth below, we find it necessary to address only Ford’s first enumeration.

Ford argues that, contrary to the trial court’s holding, the language in Mitchell requiring that a plaintiff show that the benefit from an alleged tortious interference with an economic expectancy be diverted to the tortfeasor should be confined to the facts of that case, pointing out that other jurisdictions that have relied on Mitchell have not adopted this as an element of the cause of action and that imposing this requirement subverts the primary purpose of the tort.

However, regardless of our view of the persuasiveness of these arguments, it seems to us that Mitchell requires both that the tortfeasor acted with malice and fraud and evidence that as a result of those malicious and fraudulent actions the economic benefit or gift which would have flowed to the plaintiff was diverted to the tortfeasor. The court’s language does not seem open to our interpretation, a view that is strengthened by the fact that similar language appears at numerous points throughout the court’s opinion.

Further, contrary to Ford’s contentions otherwise, we do not believe that Morrison v. Morrison, 284 Ga. 112 (663 SE2d 714) (2008) requires a different result. In that case the alleged tortfeasor, who was the deceased’s son, failed to use his power of attorney prior to his father’s death to comply with specific written directions from the father concerning changes to the distribution of his estate. Although that opinion does not discuss many of the underlying facts, a prior opinion concerning the same facts but different legal claims makes reference to “a breach of fiduciary duty on account of self-interest in maintaining property in the estate to be devised to him under a will he procured for his own benefit” and that the son’s refusal to comply with her father’s request demonstrated the son’s “self-interested manipulation of [his father] for [his] own benefit.” Morrison v. Morrison, 282 Ga. 866, 868 (4) (655 SE2d 571) (2008). Thus, it appears that the alleged tortfeasor in Morrison also stood to directly benefit at the expense of others who his father had intended to receive certain benefits upon his death.

Because we conclude that the trial court did not err by holding that Ford was required to show that Reynolds benefitted from her alleged tortious interference with Ford’s expected gift, and further agree that there was no evidence of such a benefit, it is unnecessary for us to address Ford’s other contentions.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

Decided March 27, 2012

Burnside Wall, James B. Wall, for appellant.

Tucker, Everitt, Long, Brewton & Lanier, Thomas W. Tucker, A. Montague Miller, Donsbach & King, John A. Donsbach, Joseph B. King, for appellee.

       The Mobleys did not have children, and Reynolds is not directly related to either Helen or Harold but was married to Helen’s nephew.

       Ford is also not related to Mobley, and under the relationship box on the change of beneficiary form he describes her as a “friend.” Further, the record shows that Mobley and Ford’s father were friends from childhood, but that Ford’s father had been dead since approximately 1954 and that Ford was only 13 months old when her father died.

       Ford dismissed with prejudice her claims against Wachovia on December 15, 2010.

       In her reply brief on appeal, Ford states that she is not asserting a breach of fiduciary duty as a distinct cause of action, but rather contending that the “underlying breach of fiduciary duty is an element of the intentional interference claim.”

       On page 830 of the Mitchell opinion the court refers to the right “to attack a fraudulent procurement of a change by a third party who received the amount specified.” (Emphasis supplied.) Subsequently the court notes that the fact that a certain status has not ripened into a vested and irrevocable ownership “does not authorize a third party to maliciously and fraudulently destroy the status ..., so that he will receive the fund.” (Emphasis supplied.) Id. at 833. And then the court goes on to discuss “[t]he case of one who fraudulently prevents the making of a devise, and procures the property to be left to himself____” (Emphasis supplied.) Id. at 834. Lastly, the final paragraph of the opinion states:
      Of course, in the instant case, it would be necessary, in order to recover, to show that a benefit would have accrued to the plaintiff, and that the statements of the defendant were false and fraudulent, and were the proximate cause of loss to the plaintiff. But where the member died soon after the change was fraudulently procured, and the amount of the certificate was paid to the new beneficiary, the case was susceptible of proof.
      (Emphasis supplied.) Id. at 837.

       We do not belabor this point, except to note that we find meritless Ford’s argument that the fact that Reynolds deposited the funds from the Securities account into a banking institution where her husband served on the Board of Directors created a question of fact about whether she benefitted from her actions. The only evidence on this issue shows that she made the transfer so she could write checks to pay Mobley’s bills and that she received a favorable rate of interest on the account. Moreover, Ford acknowledges that, pursuant to the terms of the power of attorney, Reynolds was entitled to give herself the $5,000 gift (as the trial court noted, she was actually entitled to much more) but argues this circumstance should be considered in considering her intent.


author: DOYLE, Presiding Judge.

text:
    A11A1731.
    PATE v. THE STATE.
    (726 SE2d 691)
   DOYLE, Presiding Judge.

After a jury trial, the Gwinnett County Superior Court convicted Brandon Pate of statutory rape, aggravated assault with a deadly weapon, and possession of a knife during the commission of the felony of statutory rape. Pate appeals, arguing that the trial court erred by (1) admitting hearsay testimony; (2) replacing a juror without cause; (3) admitting bad character evidence; (4) violating his Sixth Amendment right to confront the victim about her accusations; (5) closing the courtroom during testimony by two State witnesses; and (6) admitting prejudicial testimony concerning harassment of the victim, which was unrelated to the charged crimes. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [Defendant] no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.[] Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

So viewed, the record establishes that in December 2008, the victim, M. R., reported that two years earlier in late December 2006 or early January 2007, Pate entered her bedroom, demanded sexual intercourse, produced a knife, and threatened to injure M. R.’s father if she refused his demand. M. R.’s friend, Kaila, was a guest at M. R.’s home that night, and she corroborated M. R.’s testimony that Pate possessed a knife and demanded sex. Kaila also testified that she witnessed M. R. and Pate have sexual intercourse that night.

In addition to M. R. and Kaila, the State presented the testimony of Dylan Toves, who testified that M. R. disclosed the sexual assault to him in the fall of 2007, prior to her December 2008 outcry, and Officer T. D. Roach, who initially investigated the outcry M. R. made in December 2008.

The State presented the similar transaction testimony of M. K, who testified that she was dating Pate in 2007, and on April 26 of that year, he came to her house, where she was alone. M. K. testified that Pate began getting rough and forced her to have sex. Although he did not have a weapon, he threatened to kill her father if she told anyone. M. K. did not report the incident to law enforcement, but she later told a friend and then her parents. M. K. testified that she did not know the victim or Kaila prior to her appearance in court that day.

The jury convicted Pate of statutory rape and the related aggravated assault and possession of a knife during the commission of the felony, but acquitted him of rape, two counts of child molestation, two counts of burglary, one count of aggravated assault with the intent to rape, terroristic threats, and two counts of cruelty to children in the third degree. Pate filed a motion for new trial, which he later moved to dismiss. The trial court granted the motion to dismiss, and Pate filed this appeal of his conviction.

1. Pate first argues that the trial court erred by allowing prior consistent statements made by M. R. to Toves and Officer Roach, which statements amounted to inadmissible hearsay that improperly bolstered M. R.’s testimony.

A witness’s prior consistent statement is admissible only where: (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. A witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. Even then, to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive.

(a) With regard to Toves’s testimony, Pate contends that the trial court erred by allowing him to testify that M. R. made allegations of sexual assault by Pate to Toves in the fall of 2007 because Toves testified before M. R. took the stand, and therefore, M. R.’s veracity had not been challenged at the time Toves testified. Nevertheless, as the Supreme Court has explained,

[although [M. R.] had not yet testified nor had there been an attack on her credibility when [Toves testified], [M. R.] subsequently did testify to statements with which [Toves’s testimony was] consistent. . . . [Because M. R.’s] credibility was eventually attacked[,] [Toves’s testimony] was properly admitted as a prior consistent statement.

(b) On the other hand, M. R. made her statements to Officer Roach after the alleged fabrication, influence, or motive because they were made after M. R. was accused of possessing narcotics. Therefore, the statements were erroneously admitted, even though M. R.’s veracity was later attacked by Pate when she took the stand.

Nevertheless, any error in admitting this evidence was harmless.

Generally, hearsay erroneously admitted is harmless error where other legally admissible evidence of the same fact is introduced at trial. But when the hearsay erroneously admitted is the prior consistent statement of a testifying witness . . . the error is reversible if it appears likely that the hearsay contributed to the guilty verdict.

Significantly, the jury acquitted Pate of the most serious sexual offenses as well as the related charges of aggravated assault, burglary, terroristic threats, and cruelty to children. These acquittals establish “that the jury was able to objectively consider the evidence of the charges, despite the improper bolstering . . . ,” Accordingly this enumeration is without merit.

2. Pate next contends that the trial court erred by dismissing a juror without sufficient cause. We disagree.

“Under OCGA § 15-12-172, a trial court is vested with the discretion to discharge a juror and to replace him or her with an alternate juror at any time during the proceedings, as long as the trial court has a sound legal basis to do so.”

After a number of witnesses had testified, the defense called witness Hayley Lawrence to the stand, and the juror at issue passed a note to the judge stating that she knew the witness because of an affiliation with her daughter’s cheerleading squad. The trial court then removed the jury and allowed the attorneys to voir dire the individual juror as to whether her acquaintance with the witness would affect her ability to deliberate and impartially apply the law to the facts of the case. After the voir dire, the State moved for the court to excuse the juror from service and seat the alternate juror, who had been present at the trial and listened to the testimony presented. The trial court excused the juror, finding that she believed her acquaintance with the witness and with the school (where the defendant, various witnesses, and the juror’s son had attended classes) made her very uncomfortable and would affect her ability to deliberate in the case. Although she did agree with defense counsel that she would impartially apply the law to the facts of the case, she also expressed a great deal of unease about being involved in the case because of her ties with the school.

After observing voir dire of the juror in question, the court granted the State’s motion to excuse her because it determined that her ability to deliberate would be compromised by her connections to the school community and at least one witness. Although the juror did state that she would make a determination of the verdict based on the facts presented during testimony and the law, the trial court was within its discretion to excuse her based on the totality of the circumstances. “This ruling had a sound basis in that it served the legally relevant purpose of preserving public respect for the integrity of the judicial process.”

3. Pate contends that the trial court erred by admitting bad character evidence that was irrelevant to the proceedings. We disagree.

Generally, the... character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct. OCGA § 24-2-2. Whether to admit evidence is a matter resting in the trial court’s sound discretion, and evidence that is relevant and material to an issue in the case is not rendered inadmissible because it incidentally places the defendant’s character in issue.

Moreover, “[a]ny party, including the party calling the witness, may attack the credibility of a witness.”

During the defense’s case, Pate called Justin Crutcher, who testified to being Pate’s best friend, as a witness. Crutcher testified that he had attended a party with Kaila and overheard her saying that M. R. had fabricated the allegations against Pate and that the attack never occurred. The State then cross-examined Crutcher, and Pate contends that the following line of questioning resulted in the admission of irrelevant bad character evidence of Pate.

THE STATE: Did you ever hear of any allegations of the knife being involved with the alleged rape . . . ?
WITNESS: No, sir.
THE STATE: Back in 2007[,] what kind of knife did the Defendant carry?
WITNESS: He never carried a knife.
THE STATE: Ever?
WITNESS: Ever.
THE STATE: Did you know the Defendant in May of 2007?
WITNESS: Yes, sir.
THE STATE: And were you with the Defendant on Memorial Day 2007 at the pool at the Windsong Subdivision?
WITNESS: Yes, sir.
THE STATE: I’m going to ask you again, what kind of knife did the Defendant carry at that time?
WITNESS: Brandon did not have a knife, sir.
THE STATE: Were you involved in an altercation on that day . . . ?

At this point, the defendant objected, and the State proffered its line of questioning prior to the trial court overruling the defendant’s objections on character and relevance. The State continued its questioning before the jury, asking Crutcher if he and the defendant were in a confrontation at the pool. Crutcher testified that some individuals asked them to leave. The questioning continued as follows:

THE STATE:... [D]id you see [the Defendant] with a knife?
WITNESS: No, sir.
THE STATE: Did you hear him issue any threats?
WITNESS: No, sir.

At the close of the defense’s case, the State called as rebuttal witnesses Sam Bannister and Deidra Lawrence, both of whom testified that Pate possessed a knife at a pool party Memorial Day weekend in 2007. Lawrence also testified that Crutcher was at the party with Pate, and Pate made no effort to conceal the knife.

Here, the initial question posed to Crutcher by the State — what type of knife Pate carried in 2007 — did not inject bad character evidence into the trial because the mere fact that Pate carried a knife does not impute bad character. Nevertheless, the rebuttal testimony presented by the State from Bannister and Lawrence that Pate displayed the knife in addition to the questions posed to Crutcher describing the poolside incident as an altercation imputed bad character to Pate. As stated above, however, the simple fact that evidence imputes bad character to the defendant does not necessarily mean that the evidence is inadmissible. In this case, Crutcher’s testimony called into question the truthfulness of many of the State’s witnesses, and therefore, evidence of the poolside incident during which Pate allegedly possessed a knife in Crutcher’s presence was admissible for purposes of impeaching Crutcher. Therefore, there was no abuse of discretion by the trial court in admitting the evidence.

4. Pate next contends that the trial court erred by refusing to allow him to cross-examine M. R. regarding an alleged drug sale at school, which violated his Sixth Amendment right to confrontation. We disagree.

The confrontation clause of the Sixth Amendment grants criminal defendants the right to impeach the prosecution’s witnesses by cross-examining them with regard to whether they are currently on probation for a juvenile offense or have an open or pending case in juvenile court, or whether they are currently committed to the custody of the Department of Juvenile Justice. The right of a defendant to cross-examine a [S]tate witness to show that the witness slanted his testimony in favor of the [S]tate in order to obtain more favorable treatment overcomes the [S] tate’s interest in maintaining the confidentiality of juvenile court proceedings. This right to cross-examination is subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation.

Moreover, while

[t]he Sixth Amendment guarantees to the defendant the right to inquire about a witness’s current probationary status or pending criminal charges in an effort to show that the witness has possible biases, prejudices, or ulterior motives that may influence his testimony[,]... the substantive facts underlying an open juvenile case would not generally be admissible.

On December 12,2008, M. R. was alleged to have sold marijuana on the campus of her high school, which incident was reported to school officials on December 15 — the same date upon which M. R. made the outcry to her father. The delinquency petition in connection with the December 12 narcotic sale was not filed until January 2009.

After the parties examined M. R.’s juvenile records in camera, the trial court determined that any cross-examination by the defense of M. R. regarding the matter would be an overly speculative attack on her credibility because she was not on probation and no charges were pending against her, either at the time of trial (March 2010) or at the time of her outcry (December 2008). Given these conclusions combined with Pate’s failure to “show evidence of a deal or any hope of a deal between [M. R.] and the State,” the trial court did not abuse its discretion by prohibiting Pate from impeaching M. R. with impermissible character evidence concerning her sale of narcotics at school.

5. Pate maintains that the trial court also erred by partially closing the courtroom during the testimonies of M. R. and M. K. We disagree.

During a trial in a court of any case in which the evidence is vulgar and obscene or relates to the improper acts of the sexes, and tends to debauch the morals of the young, the presiding judge shall have the right in his discretion and on his own motion, or on motion of a party or his attorney, to hear and try the case after clearing the courtroom of all or any portion of the audience.

Although M. R. andM. K. were 16 at the time of trial, another statute provides that

[i]n the trial of any criminal case, when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.

“[T]his Court [has] held that the partial closure permitted under [OCGA § 17-8-54] does not violate a defendant’s Sixth Amendment right to a public trial.”

In this case, the trial court did not abuse its discretion by partially closing the courtroom during the testimonies of M. R. and M. K, who both testified that at the ages of 13 years old, Pate, during separate incidents, forced them to engage in sexual intercourse with threats of violence to family members, in one instance, brandishing a knife. The trial court limited the closure by allowing Pate, the attorneys for the defense and the State, immediate families or guardians of the witnesses, immediate families or guardians of Pate, the attorneys’ employees, officers of the court, sheriffs deputies, and any members of the press to remain in the courtroom, which this Court has previously determined acceptable pursuant to the Sixth Amendment, and Pate has failed to present any reason to support his argument that such a partial closure in this instance was a violation of his right to a public trial. Accordingly, this enumeration is without merit.

6. Finally, Pate maintains that the trial court erred by allowing irrelevant and prejudicial testimony concerning alleged harassment of M. R. by Pate and his friends, including Crutcher. We disagree.

[U]nless the potential for prejudice substantially outweighs probative value, Georgia law favors the admission of relevant evidence, no matter how slight its probative value. And evidence is relevant if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or throw light upon a material issue is relevant. Indeed, even where the relevancy or competency is doubtful, the evidence should be admitted, and its weight left to the determination of the jury.

Decided March 27, 2012

Mark J. Issa, Jonathon J. Majeske, Ashutosh S. Joshi, for appellant.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

As an initial matter, because Toves’s hearsay testimony of any of the instances of harassment was cumulative to M. R.’s direct testimony on the issue, there was no error on the part of the trial court to admit it simply on the basis that it was hearsay. As for Pate’s argument that the trial court erred by allowing the testimony because it was irrelevant, there was no abuse of discretion because the testimony was relevant to rebut the attack on her credibility as well as the credibility of Kaila. Accordingly, this enumeration is without merit.

Judgment affirmed.

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

       OCGA§ 16-6-3 (a).

       OCGA§ 16-5-21 (a) (2).

       OCGA§ 16-11-106 (b) (1).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) (507 SE2d 484) (1998). See also Jackson, 443 U. S. at 319 (III) (B).

       See Heard v. State, 274 Ga. 196, 197 (1) (552 SE2d 818) (2001) (an order granting a defendant’s motion for new trial extends the time for filing a notice of appeal beyond the 30 days following entry of the judgment).

       (Punctuation and footnotes omitted.) Duggan v. State, 285 Ga. 363, 366 (2) (677 SE2d 92) (2009).

        Sterling v. State, 267 Ga. 209, 213 (9) (477 SE2d 807) (1996). See Nguyen v. State, 294 Ga. App. 67, 70-71 (668 SE2d 514) (2008).

       See Duggan, 285 Ga. at 366 (2).

       (Citations omitted.) Connelly v. State, 295 Ga. App. 765, 768 (3) (673 SE2d 274) (2009).

        Damerow v. State, 310 Ga. App. 530, 537 (4) (a) (i) (714 SE2d 82) (2011) (reviewing for ineffective assistance of counsel).

       (Citations and footnote omitted.) Dunn v. State, 308 Ga. App. 103, 104 (1) (a) (706 SE2d 596) (2011).

       (Citation and punctuation omitted.) Murray v. State, 276 Ga. 396, 399 (4) (578 SE2d 853) (2003). See also Moon v. State, 288 Ga. 508, 512-513 (5) (705 SE2d 649) (2011).

       (Punctuation omitted.) Hernandez v. State, 304 Ga. App. 435, 437 (3) (696 SE2d 155) (2010).

       OCGA § 24-9-81 (2005).

       Cf. Sweet v. State, 278 Ga. 320, 325 (7) (602 SE2d 603) (2004) (“gun ownership and the custom of carrying a gun do not, by themselves, impute bad character”) (citation and punctuation omitted).

       See Lee v. State, 308 Ga. App. 711, 714-715 (2) (708 SE2d 633) (2011) (harmless error analysis on bad character evidence based on brandishing a gun rather than merely possessing a gun); Moon v. State, 202 Ga. App. 500, 501-502 (2) (414 SE2d 721) (1992) (reversing conviction based on admission of bad character evidence of brandishing a weapon rather than merely possessing a weapon).

       See Peterson v. State, 274 Ga. 165, 169-170 (4) (549 SE2d 387) (2001) (holding that trial court did not err hy admitting for impeachment purposes evidence that defendant struck daughter in response to his testimony that he would never intentionally hurt her).

       (Punctuation and footnotes omitted.) Hibbs v. State, 299 Ga. App. 723, 724-725 (2) (683 SE2d 329) (2009).

       (Punctuation and footnote omitted.) Wright v. State, 279 Ga. 498, 499 (2) (b) (614 SE2d 56) (2005).

       It appears from the record that M. R. was adjudicated delinquent on January 29, but there was disagreement between counsel for Pate and for the State about the exact timeline of the delinquency petition. “It is incumbent upon [Pate], as appellant, to provide this Court with a record from which we can ascertain whether the trial court correctly ruled upon h[is] motion..., and mere assertions of error in h[is] brief do not suffice. In the absence of a sufficient record, we must assume that the trial court’s ruling was proper ....” (Citations omitted.) Self v. State, 232 Ga. App. 735, 737 (3) (503 SE2d 625) (1998).

        Sapp v. State, 263 Ga. App. 122, 123 (587 SE2d 267) (2003). See also Self, 232 Ga. App. at 737 (3).

       OCGA§ 17-8-53.

       OCGA§ 17-8-54.

        Delgado v. State, 287 Ga. App. 273, 279 (2) (651 SE2d 201) (2007), citing Hunt v. State, 268 Ga. App. 568, 571 (1) (602 SE2d 312) (2004).

       See Sears v. State, 182 Ga. App. 480, 485 (8) (356 SE2d 72) (1987), overruled on other grounds as stated in Johnston v. State, 213 Ga. App. 579, 580 (445 SE2d 566) (1994).

       See Clarke v. State, 309 Ga. App. 749, 751 (2) (711 SE2d 339) (2011); Delgado, 287 Ga. App. at 279 (2); Sears, 182 Ga. App. at 485 (8).

       (Punctuation and footnotes omitted.) Mims v. State, 314 Ga. App. 170, 173-174 (2) (723 SE2d 486) (2012).

       See Belmar v. State, 279 Ga. 795, 797 (2) (621 SE2d 441) (2005) (“The erroneous admission of hearsay testimony is not reversible error where the hearsay is cumulative of legally admissible evidence of the same fact.”) (citation omitted).

       See, e.g., Mims, 314 Ga. App. at 174 (2).


text:
    A11A1933.
    WELLER et al. v. BLAKE et al.
    (726 SE2d 698)
   DOYLE, Presiding Judge.

Allston and Kathleen Weller filed a complaint against Richard and Tina Blake for damages arising from smoke emanating from the Blakes’ outdoor fireplace. The Wellers appeal the trial court’s grant of summary judgment to the Blakes in several enumerations of error. For the reasons set forth below, we reverse.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment^] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

So viewed, the record shows that the Blakes and the Wellers live next door to each other in a subdivision in Cobb County. In or around June 2008, the Blakes built an outdoor fireplace in their backyard. The fireplace’s stone chimney is approximately ten feet high and located about thirty feet from the Wellers’ closest window; photographs contained in the record show that the top of the chimney is roughly level with the main floor of the Wellers’ adjacent house, which sits on a basement. The Blakes received approval for the fireplace from the subdivision homeowners’ association before beginning construction, and although they did not have a permit at the time they constructed the fireplace, they later obtained one.

According to the Wellers, wood smoke fills their yard and house when the Blakes use their outdoor fireplace. The smoke is visible and has a strong, offensive odor. The Wellers deposed that the smoke makes them and their three young daughters “very uncomfortable,” and it causes them to cough and have itchy, red eyes; headaches; scratchy throats; and difficulty breathing. When the smoke enters their home, the Wellers close their windows and the garage door, and on occasion, they move the children to a different part of the house or the basement or leave the house altogether to avoid it. Two of the Wellers’ three young children have medical conditions, including allergies and croup, that are exacerbated by smoke inhalation, and the children’s pediatrician told the Wellers that wood smoke “is not good for children.” The Wellers concede, however, that they have never had to administer medicine to the children or seek medical attention for them as a result of smoke inhalation from the Blakes’ fireplace.

Allston testified that the Blakes used the fireplace to burn wood approximately twenty to thirty times in the three-year period preceding his deposition. The Blakes initially burned pine and other soft woods, but after the Wellers complained, the Blakes used other types of dry hardwoods and Duraflame logs, and they built smaller fires in an attempt to mitigate the smoke. They also planted fast-growing trees, minimized the frequency and duration of the fires, reduced the amount of kindling used in the fires, and made efforts to limit use of the fireplace to those days when the wind was blowing away from the Wellers’ house. Richard further testified that an inspector from the Cobb County Fire Department inspected the fireplace following a complaint to the county by the Wellers, and the inspector concluded that the fireplace was suitable for burning and authorized him as a registered burner in Cobb County, which designation permitted him to burn hardwoods 24 hours a day. At the request of a Cobb County Building Inspector, Richard had the fireplace inspected by a structural engineer, who concluded that the fireplace “was sound and properly constructed.”

The Wellers filed suit against the Blakes, alleging claims for nuisance, negligence, punitive damages, and attorney fees and expenses pursuant to OCGA § 13-6-11. The Blakes moved for summary judgment, and the trial court granted the motion following oral argument. This appeal followed.

1. Nuisance. The Wellers argue that the trial court erred by granting summary judgment as to their nuisance claim because genuine issues of material fact exist. We agree.

In Georgia, a nuisance is “anything that causes hurt, inconvenience, or damage to another[,] and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.”

If a nuisance is found to exist although there has been only de minimis damage to the property interest, appellants] may seek damages for annoyance and discomfort caused by such nuisance as a result of the maintenance of the nuisance. Damages for discomfort and annoyance are separate and distinct damages from any damage to realty. The measure of damages for discomfort, unhappiness, and annoyance is in the enlightened conscience of the jury.

Here, the fact that the Wellers and their children may have had certain unrelated medical conditions that are exacerbated by smoke inhalation is irrelevant because “[t]he determining factor in an alleged nuisance is not its effect upon persons who are invalids, afflicted with disease, bodily ills, or abnormal physical conditions, or who are of nervous temperament, or peculiarly sensitive to annoyances or disturbances of the character complained of.” Instead, the issue is whether the smoke that emanated from the Blakes’ outdoor fireplace would cause hurt or damage to an ordinary, reasonable person.

The Supreme Court of Georgia reviewed a claim for nuisance based on smoke in Holman v. Athens Empire Laundry Co., in which the owner of a building containing offices, factories, and a café filed suit against a neighboring laundry company, alleging that the defendant’s burning of soft coal created “a very black, dense smoke, which smoke is a nuisance----” The burning of the soft coal created “dense volumes of black smoke,” which were blown directly into Holman’s building, creating “inconvenience and discomfort” and depositing soot into the building, permanently damaging furniture and other contents. Holman sought to enjoin the defendant from burning soft coal, arguing that the defendant had a non-objectionable alternative fuel. The Supreme Court held that whether the defendant’s actions created a nuisance was a jury question, explaining that for smoke to constitute a nuisance,

it must be such as to produce a visible, tangible, and appreciable injury to property, or such as to render it specially uncomfortable or inconvenient, or to materially interfere with the ordinary comfort of human existence. With respect to dwelling houses, . . . [t]he rule is that the comfortable enjoyment of the premises must be sensibly diminished, either by actual, tangible injury to the property itself, or by the promotion of such physical discomfort as detracts sensibly from the ordinary enjoyment of life.

Here, the Wellers do not allege actual, tangible injury to their property. Instead, they allege that the smoke substantially aggravates, annoys, and inconveniences them, and it impairs their use and enjoyment of their property. The record, when construed in favor of the Wellers as the nonmovants, shows that the Blakes had a fire in their outdoor fireplace approximately thirty times in a three-year period, and that each time, the Wellers could smell the smoke in their home and suffered from itchy eyes, headaches, scratchy throats, and breathing problems. On two or three occasions, the smoke was visible inside the Wellers’ home. Several times, the Wellers either moved to a different part of their house or left their home altogether to avoid the smoke from the Blakes’ fireplace. We conclude that this evidence was sufficient to create a jury question on the issue of whether the smoke from the Blakes’ outdoor fireplace would reasonably interfere with an ordinary person’s enjoyment of life. Therefore, the trial court erred by granting the Blakes’ motion for summary judgment.

2. Negligence. The Wellers also contend that the trial court erred by granting the Blakes’ motion for summary judgment as to their negligence claim.

The elements of a negligence cause of action are: (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm\ (2) a breach of this standard; (3) a causal connection between the conduct and the injury; and (4) damages from the breach of duty. This legal duty may arise from the general duty one owes to all the world not to subject them to an unreasonable risk of harm. Negligence is conduct which falls below the standard established by law for the protection of others against this risk.

Viewed in favor of the Wellers, we conclude that the evidence is sufficient to create a jury question as to negligence. Thus, the trial court erred by granting summary judgment on this claim.

3. The Wellers also argue that the trial court erred by granting summary judgment on their claims for punitive damages and attorney fees and expenses of litigation. We agree.

(a) Punitive damages. OCGA§ 51-12-5.1 (b) provides:
Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.

A continuing nuisance will authorize a punitive damage award. “Actions arising to a conscious indifference to consequences may authorize a finding of punitive damages.”

Whether the tort was sufficiently aggravating to authorize punitive damages is generally a jury question, and a jury may award punitive damages even where the clear and convincing evidence only creates an inference of the defendant [s’] conscious indifference to the consequences of [their] acts.

“[P]unitive damages maybe awarded even when actual damages are small.” And, “even where the defendant did not act with conscious indifference in creating the problem that led to the damage, punitive damages may be justified if the defendant acted with such conscious indifference in failing to correct that problem.”

Here, although there is .evidence that the Blakes took steps to reduce the adverse impact of the smoke emanating from their fireplace, the record shows that they continued to use the fireplace after the Wellers notified them that it caused smoke to enter their home, resulting in physical discomfort to the Wellers and interfering with their use and enjoyment of their home to the extent that they were required to move to another room or to leave the house entirely. Under these circumstances, we conclude that there is some evidence of acts by the Blakes “which could allow a jury to consider a claim for punitive damages.”

(b) Attorney fees. The Wellers sought attorney fees under OCGA § 13-6-11, which provides:

The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.

“Whether there was bad faith is generally for the jury to determine from its consideration of the facts and circumstances in the case. . . . Bad faith warranting an award of attorney fees must have arisen out of how the defendant [s] acted in dealing with the plaintiff [s].” The Supreme Court of Georgia and this Court have determined that some evidence of bad faith existed in nuisance cases in which the defendant was aware of the plaintiffs complaints and yet failed to alleviate or remedy the nuisance.

Decided March 27, 2012.

Robert B. Jackson IV, Lisa B. Perlstein, for appellants.

Fain, Major & Brennan, James F. Taylor III, for appellees.

In the instant case, as stated in Division 3 (a), supra, there was evidence to suggest that although the Blakes took steps to limit the quantity of smoke emanating from their fireplace, they knew that the smoke was still infiltrating the Wellers’ home and, nevertheless, proceeded to burn wood in their outdoor fireplace. At this stage of the proceeding, “[w]e find this evidence ... sufficient to submit the issue of attorney fees to the jury.” Accordingly, the trial court erred by granting summary judgment on attorney fees.

4. Our holdings in Divisions 1-3 render the Wellers’ remaining enumeration moot.

Judgment reversed.

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

       (Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

       Allston Weller testified that "we have seen a visible haze before in our house and would say that’s probably happened two or three times. Usually, though, it is just the odor or it’s predominately the odor. Sometimes it takes the visible portion of it more time to get in, no question, but the odor is a hundred percent of the time.”

       OCGA §41-1-1.

       (Citations and punctuation omitted.) Hammond v. City of Warner Robins, 224 Ga. App. 684, 689-690 (1) (482 SE2d 422) (1997) (physical precedent only). See also Davis v. Overall, 301 Ga. App. 4, 6 (1) (686 SE2d 839) (2009); Woodmen of the World, Unit No. 3 v. Jordan, 231 Ga. App. 517, 519 (2) (499 SE2d 900) (1998) (“In a nuisance action, recovery is authorized for damage to both person and property. Unlawful interference with the right of the owner to enjoy possession of his property may he an element of damages. The measure of damages for discomfort, disrupted peace of mind, unhappiness),] and annoyance caused by a nuisance is for the enlightened conscience of the jury.”) (citations and punctuation omitted).

       (Punctuation omitted.) Warren Co. v. Dickson, 185 Ga. 481, 483 (2) (195 SE 568) (1938).

       See id.

       149 Ga. 345 (100 SE 207) (1919).

       (Punctuation omitted.) Id. at 346.

       Id. at 347.

       See id. at 347.

       (Punctuation and emphasis omitted.) Id. at 351.

       See Davis, 301 Ga. App. at 5.

       Although the Wellers imply that the Blakes have violated multiple regulations and rules, citing to various documents indicating that the Blakes are required to comply with all applicable rules, regulations, and covenants while burning in their fireplace, they have failed to provide any affirmative evidence indicating that any regulatory body or agency has concluded that the Blakes’ use of their fireplace does in fact violate a rule, regulation, or covenant.

       See Warren Co., 185 Ga. at 485 (4) (demurrer properly denied as to plaintiffs’ nuisance claim against owners of a neighboring baseball park because games produced cheers and other noise five nights a week, from 8:00 p.m. until midnight or afterwards, preventing the plaintiffs from sleeping); Holman, 149 Ga. at 351 (5); Alexander v. Hulsey Environmental Svcs., 306 Ga. App. 459, 463 (4) (702 SE2d 435) (2010) (reversing the grant of summary judgment to the officer and employee of a corporation operating a waste disposal facility that creates offensive odors and attracts pests, damaging the plaintiffs’ ability to use and enjoy their property); Roberts v. Southern Wood Piedmont Co., 173 Ga. App. 757, 758-759 (1) (328 SE2d 391) (1985) (reversing a directed verdict as to plaintiffs’ nuisance claims based on evidence that utility pole manufacturing facility created substantial noise and vibration in their homes); Gatewood v. Hans-ford, 75 Ga. App. 567, 569-570 (44 SE2d 126) (1947) (affirming the denial of a demurrer as to plaintiffs nuisance claim because the defendant’s operation of its dry cleaning business resulted in smoke and soot being blown into the plaintiff s house, requiring the plaintiff to keep the windows and doors of his home tightly closed and causing damage to his home).

       (Punctuation omitted; emphasis supplied.) Lowry v. Cochran, 305 Ga. App. 240, 246 (2) (c) (699 SE2d 325) (2010).

       See Tyler v. Lincoln, 272 Ga. 118, 120 (1) (527 SE2d 180) (2000).

        Baumann v. Snider, 243 Ga. App. 526, 530 (3) (532 SE2d 468) (2000).

        Tookes v. Murray, 297 Ga. App. 765, 768 (2) (678 SE2d 209) (2009).

        Tyler, 272 Ga. at 121 (1).

        Wildcat Cliffs Builders, LLC v. Hagwood, 292 Ga. App. 244, 247 (1) (663 SE2d 818) (2008).

        Tyler, 272 Ga. at 121 (1) (a conscious indifference to consequences may exist where the defendant creates a nuisance that causes discharge onto the plaintiff’s property and fails to ameliorate or remedy the problem). See Wildcat Cliffs Builders, 292 Ga. App. at 247 (1) (same); Baumann, 243 Ga. App. at 530-531 (3) (same). Compare Gen. Refractories Co. v. Rogers, 240 Ga. 228, 230-234 (239 SE2d 795) (1977) (holding that punitive damages were not authorized because the defendant complied with state authority and made efforts to reduce the quantity of water diverted onto the plaintiff’s property).

        City of Atlanta v. Landmark Environmental Indus., 272 Ga. App. 732,745 (11) (613 SE2d 131) (2005).

       See Tyler, 272 Ga. at 122 (2); Landmark Environmental Indus., 272 Ga. App. at 744-745 (11); Nichols v. Main Street Homes, 244 Ga. App. 591, 593 (2) (a) (536 SE2d 278) (2000); Baumann, 243 Ga. App. at 529-530 (2); CSX Transp. v. West, 240 Ga. App. 209, 211-212 (3) (a) (523 SE2d 63) (1999), overruled on other grounds, Monterrey Mexican Restaurant of Wise v. Leon, 282 Ga. App. 439, 452 (6) (d) (638 SE2d 879) (2006).

        Nichols, 244 Ga. App. at 594 (2) (a).


text:
    A11A2008.
    HITE v. THE STATE.
    (726 SE2d 704)
   Adams, Judge.

Gary Todd Hite appeals his conviction on one count of driving under the influence of alcohol with an unlawful blood content (OCGA § 40-6-391 (a) (5)). Hite’s conviction arose after he was stopped on February 23, 2008, at approximately 3:30 a.m., by the Georgia State Patrol at a roadblock located on a ramp between Georgia 400 and Lenox Road. Arguing that the roadblock was unconstitutional, Hite moved to suppress the evidence seized following his detention, but the trial court denied the motion. We affirm for the reasons set forth below.

On appeal from the denial of a motion to suppress, “when evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Punctuation and footnote omitted.) Hammont v. State, 309 Ga. App. 395, 396 (710 SE2d 598) (2011). Here, only the arresting officer testified at the motion hearing. Hite stipulated to this testimony for purposes of his bench trial and does not dispute the testimony on appeal. Because no credibility issues are presented, we will apply a de novo review in this case.

1. Atrial court must consider five factors in determining whether a roadblock is lawful. LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998). Only the first factor is at issue here: whether the State demonstrated that “the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field.” Id. at 253 (3). This factor has been expanded in light of City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000), to require “that the supervisors had a legitimate primary purpose.” Baker v. State, 252 Ga. App. 695, 702 (1) (556 SE2d 892) (2001) . See also Hobbs v. State, 260 Ga. App. 115, 116 (1) (579 SE2d 50) (2003).

To establish a legitimate primary purpose in Hite’s case, the State introduced, over objection, a certified copy of a “Department of Public Safety Supervisor Initiation of Roadblock Approval Form” (the “Roadblock Form”) dated February 23, 2008. According to that document, the supervising officer, Sergeant Jeff Puckett, approved a roadblock during the approximate hours of 3:20 a.m. to 4:00 a.m. on February 23, 2008, on the Lenox Road ramp of Georgia 400 for the stated purposes of checking “Seatbelt compliance” and “Driver impairment.” Puckett did not testify at the hearing, but the arresting officer, Trooper Walter Christian, testified that this was his understanding of the purposes for the roadblock.

Hite does not contend that the purposes stated on the Roadblock Form were not legitimate. Rather, he asserts that the State was required to call Puckett as a witness because “the purpose behind the roadblock, and thus, its constitutionality, can only be conclusively discerned from probing the minds of the supervisory personnel that implemented the roadblock.” He argues that the State’s reliance on the Roadblock Form in the absence of the supervisor’s testimony was insufficient because he was deprived of the opportunity to cross-examine the supervisor regarding the reasons for the roadblock.

This Court has previously rejected the proposition that a supervisor must testify in person to establish the purpose behind a roadblock. Rather, “the state must present some admissible evidence, testimonial or written, of the supervisor’s purpose, i.e., purpose at the ‘programmatic level.’ ” (Emphasis supplied.) Baker, 252 Ga. App. at 701 (1). Cf. Rappley v. State, 306 Ga. App. 531, 535 (b) (702 SE2d 763) (2010) (relying upon purpose stated in written order, along with supervisor’s testimony). And in Yingst v. State, 287 Ga. App. 43, 44 (650 SE2d 746) (2007), this Court affirmed the denial of a motion to suppress where the only clearly non-hearsay evidence supporting the roadblock was “a certified copy of a document entitled ‘Henry County Police Department Roadblock & Safety Checkpoint Record.’ ” Lieutenant Ferguson, the supervising officer who prepared the form and authorized the roadblock, did not testify at the motion hearing. Although two other officers — the arresting officer and Ferguson’s supervisor — both testified, Yingst argued that their testimony was hearsay. The Court found that “[pjretermitting whether the testimony of other officers as to Lieutenant Ferguson’s purpose in initiating the specific roadblock is hearsay, in this instance, the State also presented documentary evidence of Lieutenant Ferguson’s purpose.” (Footnote omitted.) Yingst v. State, 287 Ga. App. at 44. The court relied upon that documentary evidence, which was properly admitted under the business records exception to the hearsay rule, to determine the purpose for the roadblock. Id.

In this case, the programmatic purpose set out in the Roadblock Form is supported by the other evidence at the suppression hearing. Trooper Christian’s understanding of the purposes of the roadblock was consistent with the purposes shown on the form. And the officers’ actions at the scene were in line with those purposes. Christian testified that when the drivers pulled up to the roadblock, he and the other screening officers talked to them, checked their licenses, made sure they were wearing their seatbelts and checked for any signs of impairment. If the officer noticed nothing unusual, the drivers were told “to have a safe night and continue on their way.” All vehicles were stopped while officers were available to work the roadblock, and if no problems were detected, the drivers were subjected to a minimal delay.

Accordingly, considering all the circumstances, we conclude that the State met its burden in this case of establishing the legitimate purpose of the roadblock.

2. Hite contends, however, that the State failed to establish the admissibility of the Roadblock Form under the business records exception to the hearsay rule. OCGA § 24-3-14. Hite argues that Trooper Christian’s testimony did not establish that the form was made in the state patrol’s regular course of business and that it was the patrol’s regular course of business to make the record around the time the decision to implement the roadblock was made. Hite further notes that the testifying officer was not the keeper of the records and thus lacked personal knowledge of the information necessary to lay the evidentiary foundation.

It is well established, however, that “[t]he witness laying the foundation need not be the custodian of the record.” Mealor v. State, 233 Ga. App. 193, 194 (2) (504 SE2d 29) (1998). Nevertheless,

[t]o introduce a writing under the business records exception to the hearsay rule, a witness must lay a foundation indicating that he or she is aware of the method of keeping the documents. It is not required that the witness made the records or kept them under his or her supervision or control. Instead, the witness must be able to testify that the record was made(l) in the regular course of business, and (2) at the time of the event or within a reasonable time of the event. The witness’s lack of personal knowledge regarding how the records were created does not render them inadmissible, but merely affects the weight given to the evidence.

(Citation omitted; emphasis supplied.) McKinley v. State, 303 Ga. App. 203, 209 (692 SE2d 787) (2010).

Trooper Christian testified that the Roadblock Form is a type of document kept in the regular course of business at the Georgia State Patrol. In explanation for this statement, he said that Puckett prepared one of these forms every time they had a roadblock and furnished them to the officers when the roadblock resulted in any arrests to aid the officers in establishing the authority for the roadblock in court, particularly at Administrative License Suspension hearings. The forms were completed shortly around the time of the roadblock, either before or after the event. Christian said that he picked up the Roadblock Form in this case from his desk when he pulled his case file on Hite’s arrest. He stated that he had seen Puckett’s signature on many occasions, and he believed that the signature on the form belonged to Puckett. We find that this testimony laid a sufficient foundation for the introduction of the Roadblock Form into evidence. Moreover, the form contained only “routine facts whose accuracy is not affected by bias, judgment, and memory” and thus was subject to admission as a business record. (Citation and punctuation omitted.) Yingst v. State, 287 Ga. App. at 44. Compare Brown v. State, 274 Ga. 31, 33 (1) (549 SE2d 107) (2001) (finding narrative portion of police report not admissible as a business record because narrative may contain opinion and reflect “human attitudes and emotions which are subjective in nature and susceptible to many interpretations”).

And contrary to Hite’s contention, the recent United States Supreme Court decision in Bullcoming v. New Mexico,_U. S._ (131 SC 2705,180 LE2d 610) (2011) does not compel a different result. There, the United States Supreme Court found the Confrontation Clause is violated if the prosecution introduces into evidence a certification containing both the results of a forensic analysis, as well as a representation that those results are reliable, without eliciting the in-court testimony of the analyst and making him or her available for cross-examination by the defendant. See id. at 2713; id. at 2720 (Sotomayor, J., concurring in part). In making this determination, the Bullcoming court applied pre-existing and well-settled rules as to what constitutes testimonial evidence. The Court noted that

[t]o rank as “testimonial,” a statement must have a “primary purpose” of “establishing or proving past events potentially relevant to later criminal prosecution.” Elaborating on the purpose for which a “testimonial report” is created, we observed in Melendez-Diaz [v. Massachusetts, 557 U. S. 305 (129 SC 2527, 174 LE2d 314) (2009)] that business and public records “are generally admissible absent confrontation ... because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.”

Decided March 27, 2012

Barry L. Zimmerman, Daniel T. Gholston, for appellant.

Carmen D. Smith, Solicitor-General, Tracy N. Shessler, Kenneth T. Edgerton, R. Leon Benham, Assistant Solicitors-General, for appellee.

Bullcoming v. New Mexico, 131 SC at 2714, n. 6. Because the Supreme Court had already determined that “[a]n analyst’s certification prepared in connection with a criminal investigation or prosecution,... is ‘testimonial,’ and therefore within the compass of the Confrontation Clause,” the Bullcoming court determined that, in the absence of an explanation for the analyst’s absence or a chance for earlier cross-examination, the State was required to present testimony from the analyst who made the report. (Citation omitted.) Bullcoming v. New Mexico, 131 SC at 2714.

Unlike an analyst’s report of tests done and conclusions drawn, however, the Roadblock Form in this case is a record of supervisory approval for the establishment of a roadblock for certain stated purposes. The testimony established that the form is created for the administration of the State Patrol’s affairs, as it is prepared in every case of a roadblock, presumably for recordkeeping purposes. The fact that the form can be used in court, with an additional stamped certification from a custodian of records (in this case Puckett), does not change the primary purpose of the form from administrative to testimonial.

Accordingly, we affirm the trial court’ denial of Hite’s motion to suppress.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       The trial judge found Hite not guilty of driving under the influence of alcohol to the extent that it was less safe for him to drive (OCGA § 40-6-391 (a) (1)).

       A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

        LaFontaine v. State, 269 Ga. at 253 (3).

       Indeed, this Court has determined the purposes stated in the Roadblock Form are legitimate. Giacini v. State, 281 Ga. App. 426, 428 (1) (636 SE2d 145) (2006) (primary purpose of checking for driver’s licenses, insurance, and impaired drivers valid); Cater v. State, 280 Ga. App. 891, 892(1) (635 SE2d 246) (2006) (roadblock with primary purpose of checking for driver’s licenses, seat belts, and vehicle registrations upheld).

       Even if the roadblock were somehow illegitimate, the officers may have had an independent reason to stop Hite on suspicion of driving under the influence. Christian testified that, unlike the other drivers, when Hite “came onto the ramp, he accelerated and he continued accelerating and he wasn’t slowing down.” Christian also testified that as Hite approached the flares marking the roadblock, he became “scared [Hite] was going to hit somebody or hit a car.” If the State had an articulable suspicion to initiate a traffic stop on Hite’s car, the legality of the roadblock is irrelevant. See generally Jones v. State, 259 Ga. App. 506, 509 (3) (578 SE2d 165) (2003) (legality of roadblock not relevant where driver was stopped for a traffic violation in backing up after he approached the roadblock).