author: Dillard, Judge.

text:
    A11A0155.
    DeLONG v. THE STATE.
    (714 SE2d 98)
   Dillard, Judge.

Steve Louis DeLong appeals his convictions for one count of child molestation, two counts of violating Georgia’s Controlled Substances Act by distributing a Schedule IV drug, and two counts of influencing witnesses, contending that the evidence was insufficient to sustain his convictions and, alternatively, that his convictions must be reversed in light of testimony regarding the invocation of his right to remain silent. For the reasons noted infra, we conclude that the evidence was sufficient as to DeLong’s conviction for child molestation, but insufficient as to his convictions for violating Georgia’s Controlled Substances Act and influencing witnesses.

Viewed in the light most favorable to the jury’s verdict, the record shows that in September 2005, DeLong and his then-wife, Michelle Hudson, hosted a gathering at their home, which was attended by Hudson’s brother, DeLong’s sister, and DeLong’s young niece, T. C. At some point in the evening, Hudson went to check on T. C. and the couple’s own daughter, the two of whom had previously been put to sleep in the same bed. But upon entering the room, Hudson immediately noticed that T. C. was no longer in bed with her daughter. Instead, DeLong had moved T. C. to the bed he shared with Hudson, claiming to have done so after the child wet the other bed. When Hudson was unable to rouse T. C., DeLong explained that he “might have gave her [sic] an Ambien.”

At trial, Hudson testified that she was immediately suspicious of the situation and that her concern was heightened due to an incident that occurred only a few months earlier when she discovered DeLong in bed with T. C. and their daughter, all three asleep. On that occasion, Hudson looked beneath the bed sheets and noticed that both T. C. and DeLong’s underwear was pulled down and what appeared to be fecal matter on the side of T. C.’s buttocks and on the sheets. When Hudson woke DeLong to question him, T. C. slept through the commotion, and DeLong claimed that he could not remember how he had come to be in such a position. Thus, with this earlier incident in mind, Hudson approached T. C.’s mother (DeLong’s sister) at the party after having discovered T. C. in DeLong’s bed.

Upon learning of the two incidents, T. C.’s mother and father questioned the child — after she finally awoke from her groggy state — as to whether DeLong had ever touched her between her legs, and the child tearfully responded in the affirmative. Thereafter, T. C.’s parents reported DeLong to the sheriffs department, and T. C. gave a forensic interview. DeLong gave a voluntary statement to the sheriffs office, in which he admitted to giving T. C. Ambien but otherwise denied the molestation allegations. And at some point after the allegations arose, T. C.’s mother contacted the mother of J. E, a friend of DeLong’s daughter and T. C., who recalled DeLong giving her a medication that made her sleepy and have bad dreams. DeLong thereafter approached J. F.’s mother and apologized for giving J. F. Ambien, but he denied ever molesting the girl. Subsequently, DeLong was arrested and charged with child molestation based on the incident in which Hudson found DeLong and T. C. in bed with their underwear pulled down, and with distributing a controlled substance to T. C. and to J. F.

Following his arrest, DeLong approached T. C.’s parents and asked them to drop the charges against him, telling them that unless they did so he would sue them for $25,000 and demand that they publish a letter of apology in the local newspaper. T. C.’s mother informed the State of DeLong’s threatened lawsuit and inquired as to whether the charges against DeLong could be dropped. An investigator told her that because the State had brought the charges, they could not be dropped. At this point, T. C.’s mother began to cry, explaining that she was “under a lot of pressure to drop [the charges],” and informed the investigator that DeLong was waiting outside in her car. The investigator then took a written statement from T. C.’s mother and arrested DeLong on the spot for influencing witnesses.

Thereafter, DeLong was indicted and tried on charges of child molestation, distributing a controlled substance, and influencing witnesses; and he was found guilty by the jury on all counts. DeLong’s motions for directed verdict and new trial were then denied, and he was sentenced to twenty years to serve on the child-molestation count; five years to serve consecutively on both counts of distributing a controlled substance; and five years to serve concurrently on both counts of influencing a witness. This appeal follows.

On appeal from DeLong’s criminal convictions, we view the evidence in the light most favorable to the jury’s verdict, and DeLong no longer enjoys a presumption of innocence. We neither weigh the evidence nor assess witness credibility, “which are tasks that fall within the exclusive province” of the jury. With these guiding principles in mind, we will now address each of DeLong’s enumerations of error in turn.

1. DeLong first contends that the evidence was insufficient to sustain his conviction for child molestation. We disagree.

Child molestation is committed when a person “[d]oes 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.” And here, DeLong was charged with committing child molestation with the intent to satisfy his own sexual desires, in that he “did lie in bed with [T. C.] with his underwear pulled down while [T. C.’s] panties were also pulled down.” DeLong argues, however, that the evidence against him was insufficient because (1) T. C. did not testify about the incident in question, (2) Hudson did not witness any touching or sexual activity, and (3) there was no elaboration at trial as to what “pulled down” meant. These contentions are wholly without merit.

Hudson’s testimony regarding what she observed on the night in question — i.e., that T. C. and DeLong were asleep together with their underwear pulled down and that she saw what appeared to be fecal matter smeared on T. C.’s buttocks and the bed sheets — was sufficient for the jury to conclude that T. C. and DeLong’s otherwise inexplicable mutual exposure was for the purpose of satisfying DeLong’s own sexual desires. Indeed, the mere exposure of sexual organs to a child is sufficient evidence of child molestation, and neither physical contact with the child nor the child’s actual sight of the sexual organs is required. Moreover, “[iIntent is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”

Accordingly, the jury was presented with sufficient evidence to find DeLong guilty of child molestation.

2. DeLong next contends that the evidence was insufficient to sustain his convictions for distributing a controlled substance. Despite DeLong’s own admission that he distributed Ambien to T. C. and to J. E, we are constrained to agree that the State failed to meet its burden of proof on these two counts.

The Georgia Controlled Substances Act makes it unlawful for “any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance,” and the State Board of Pharmacy determines which substances are enumerated in the statute’s schedules of controlled substances pursuant to the procedures in Georgia’s Administrative Procedure Act. Furthermore, controlled substances are included in the various schedules “by whatever official, common, usual, chemical, or trade name designated.” For example, Schedule IV lists Zolpidem as a controlled substance. And in the case sub judice, DeLong was charged with two counts of violating the Controlled Substances Act by distributing “[ZJolpidem, a controlled substance commonly known as Ambien[,]” to T. C. and to J. F.

On appeal, DeLong contends that the State failed to prove that he violated the Controlled Substances Act because while Zolpidem is listed as a controlled substance, Ambien is not, and there was no testimony or physical evidence presented by the State at trial linking Ambien to Zolpidem. We are constrained to agree because although the trial court and the prosecutor both informed the jury that they would refer to Zolpidem by its trade name, Ambien, these statements do not cure the defect in the State having failed to present evidence linking Ambien to Zolpidem, and nothing in the record indicates that there was an agreement by the parties to a stipulation of same. Thus, while the State presented evidence that DeLong admitted to distributing Ambien to both T. C. and J. F. and produced testimony that “Ambien” is a Schedule IV controlled substance, our well-established case law explicitly required the State to identify “Ambien” as a trade name for Zolpidem through admissible evidence.

Specifically, this Court has previously held that the trade name of a statutorily designated controlled substance is not the proper subject of judicial notice; and because there was absolutely no testimony or physical evidence presented by the State that Ambien is the trade name for Zolpidem, we are constrained to reverse DeLong’s convictions on these two counts because the State “failed to carry its burden of proving by competent evidence that the drug [Ambien is] . . . regulated by law.”

While we fully recognize the seeming absurdity of the outcome in this case (in light of DeLong’s admission that he gave both children Ambien and the fact that Zolpidem and Ambien are in fact one and the same), the State’s prosecutor could have easily avoided this inexcusable result by simply asking one more question of the investigator who identified “Ambien” as a Schedule IV Controlled Substance or by introducing physical evidence linking the trade name “Ambien” to its statutorily listed equivalent, Zolpidem. But in the absence of such evidence, our case law demands that we reverse DeLong’s convictions for violating the Controlled Substances Act.

3. DeLong further contends that the State failed to prove that he was guilty of influencing witnesses because threatening to file a lawsuit does not fall within the ambit of this statutory offense. Once again, we are constrained to reverse.

While it is unlawful to communicate, either directly or indirectly, “any threat of injury or damage to the person, property, or employment” of a witness “with [the] intent to deter a witness from testifying freely, fully, and truthfully,” we cannot say that threatening to (ostensibly) exercise one’s legitimate right to file a lawsuit is encompassed by this statute.

And here, DeLong was charged with two counts of influencing a witness by communicating “a threat of monetary damage” to T. C.’s parents. The testimony at trial dealt exclusively with DeLong’s threat to file a lawsuit against T. C.’s parents, seeking $25,000 in damages and the publication of an apology letter. But because the mere threat of potential monetary damage and public humiliation — the latter of which the State now argues on appeal despite its absence from the indictment — are inextricably intertwined with DeLong’s threat of a lawsuit (which is neither a per se threat to person nor to property), we are constrained to reverse DeLong’s conviction on these two counts.

In so holding, we are cognizant that “consistent with principles of due process, statutes defining the elements of crimes especially ought to be afforded their plain meaning.” And in this respect, we note the dissimilarity between the threat of filing a lawsuit in the case sub judice and the threats to persons and property we have previously found to be encompassed by the statute in question. Furthermore, “[a] 11 statutes are presumed to be enacted with full knowledge of existing law[,] and their meaning and effect [are] to be determined with reference to the constitution as well as other statutes and decisions of the courts.” Thus, even assuming arguendo that the threat of filing a lawsuit (and its attendant potential consequences) was sufficient to support a conviction for influencing a witness, we have grave reservations as to whether such a law could be upheld under the Georgia or United States Constitutions.

4. Finally, DeLong argues that his convictions must be reversed because of a reference by a State witness to the invocation of his Fifth Amendment right to remain silent. We disagree.

At trial, while questioning the investigator who arrested DeLong for influencing witnesses, the State inquired as to whether the investigator had “any other contact” with DeLong during the case. In response, the investigator explained that DeLong was taken to jail and that, when the investigator went to speak with DeLong about the case and advise him of his rights, DeLong said that he did not wish to make a statement at that time. Upon hearing this testimony, DeLong’s counsel immediately objected, and the jury was removed from the courtroom. The trial court subsequently denied DeLong’s motion for a mistrial but thereafter instructed the jury to disregard the question and answer entirely, informed the jury that DeLong had the right to not make a statement, and warned the jury not to use the information in any way during its deliberations as to his guilt or innocence. DeLong now argues that the trial court’s denial of his motion for mistrial was in error because the admission of this testimony was harmful and highlighted his failure to testify.

At the outset, we note that “[t]he decision to deny a mistrial is within the trial court’s discretion, and we will not reverse it unless the grant of a mistrial is necessary to preserve the right to a fair trial.” And while DeLong is correct that “[t]he fact that a defendant exercised his right to remain silent may not be used against him at trial,” a reference to the invocation of this right will not always result in reversal. Indeed, “if the testimony concerning remaining silent is made during a narrative on the part of the authorities of a course of events and apparently was not intended to, nor did it have the effect of, being probative on the guilt or innocence of the defendant[,] it is not prejudicial.” And here, the reference to DeLong’s invocation of the right to remain silent was not directed to a particular statement or defense offered by DeLong, was made during a narrative explanation, and was promptly addressed with a thorough curative instruction by the trial court to the jury. Therefore, the trial court committed no error in denying DeLong’s motion for mistrial.

Decided July 6, 2011.

Robert L. Persse, for appellant.

Richard A. Mallard, District Attorney, Brian A. Deal, Assistant District Attorney, for appellee.

Accordingly, for all the foregoing reasons, we affirm DeLong’s conviction for child molestation, reverse DeLong’s convictions for distributing a controlled substance and influencing witnesses, and remand this case to the trial court for resentencing consistent with this opinion.

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

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

        See OCGA § 16-6-4 (a) (1).

        See OCGA § 16-13-28 (a) (33); OCGA § 16-13-30 (b).

        See OCGA § 16-10-93 (a).

        See, e.g., English v. State, 301 Ga. App. 842,842 (689 SE2d 130) (2010); Lott v. State, 303 Ga. App. 775, 775 (1) (694 SE2d 698) (2010).

       The only indication in the record of T. C.’s age is that she was in the fourth grade at the time of trial. Nevertheless, the jury could deduce through its observation of her testimony and a taped forensic interview that T. C. was well under the age of 16 during the events in question. See Day v. State, 293 Ga. App. 543, 543-44 (667 SE2d 392) (2008).

        See, e.g., English, 301 Ga. App. at 842; Lott, 303 Ga. App. at 775 (1).

        Snell v. State, 306 Ga. App. 651, 652 (1) (703 SE2d 93) (2010).

       OCGA § 16-6-4 (a) (1).

        See Rainey v. State, 261 Ga. App. 888, 889-90 (1) (584 SE2d 13) (2003) (holding that defendant’s exposure of privates to child from approximately 200 feet away was sufficient to sustain conviction for child molestation).

        See, e.g., Rainey, 261 Ga. App. at 889 (1); see also Wormley v. State, 255 Ga. App. 347, 348 (565 SE2d 530) (2002) (affirming conviction for child molestation despite contention that victims “did not know that [the defendant] was naked or had an erection while he was touching them”).

        Andrew v. State, 216 Ga. App. 427, 427 (454 SE2d 542) (1995) (citation and punctuation omitted) (further noting that this Court has held that it can be “inferred from the fact that the defendant exposed himself to a child that he had the intent to arouse or satisfy his sexual desires”); see also OCGA § 16-2-6 (“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”); Chapman v. State, 170 Ga. App. 779, 780 (1) (318 SE2d 213) (1984) (holding that there was “ample support for a finding that the conduct manifested by [the defendant] was contrary to conscience, or moral law, and was inimical to public welfare according to the standards of society as perceived by the jury” when he entered the room of the child victim as she slept, locked the door, and pulled up her shirt).

       OCGA § 16-13-30 (b); see also OCGA § 16-13-21 (providing definitions).

       OCGA § 16-13-22 (a); see also OCGA §§ 50-13-1 to -23 (general provisions of Georgia’s Administrative Procedure Act). See generally OCGA § 50-13-8 (“The courts shall take judicial notice of any rule which has become effective pursuant to [the Georgia Administrative Procedure Act].”); Bailey v. State, 259 Ga. App. 293, 294 (1) (576 SE2d 668) (2003) (“Under the provisions of the Administrative Procedure Act, we take judicial notice of the rules promulgated by the State Board of Pharmacy.” (footnote omitted)).

       OCGA § 16-13-23.

       OCGA § 16-13-28 (a) (33).

        See OCGA § 16-13-28.

       The trial court did so when speaking to the jury after voir dire but before it had been sworn in to consider the case, and the prosecutor did so during opening statements.

        See, e.g., State v. Carter, 305 Ga. App. 814, 817 n.15 (1) (701 SE2d 209) (2010) (“[Statements of counsel are not evidence, and there is no evidence that the State stipulated to such factual assertions.” (citation omitted)); see also Roby v. State, 274 Ga. App. 665, 666 (1) (618 SE2d 704) (2005) (“While parties may agree to stipulate facts in criminal cases, the trier of fact must be informed of the stipulated facts.” (citations omitted)); Sanders v. State, 252 Ga. App. 609, 613 (2) (556 SE2d 505) (2001) (“Parties may agree to stipulate to facts in criminal and civil cases. Stipulation should be in writing or made on the record.” (citation and punctuation omitted)); Dryer u. State, 205 Ga. App. 671, 673 (423 SE2d 297) (1992) (“Such an express stipulation should generally be made in writing or in open court.” (citation omitted)). See generally Elrod v. State, 143 Ga. App. 331, 331 (2) (238 SE2d 291) (1977) (holding that “pharmacist’s conclusion that ‘Demerol’ is a Class II narcotic has no probative value” because Demerol, a trade name, is not listed as a controlled substance).

        See Elrod, 143 Ga. App. at 331 (2) (reversing conviction when testimony referred to drug’s trade name without evidence linking that name to the listed controlled substance because “[i]n the absence of a specific designation of the drug Demerol, . . . the courts cannot ‘notice’ whether a certain substance falls within the prohibitive scope of a broad category of drugs” (citation and punctuation omitted)); see also Tant v. State, 247 Ga. 264, 266 n.1 (275 SE2d 312) (1981) (citing to Elrod for the proposition that “the generic equivalent of a trade name is not the proper subject of judicial notice” and holding that “the testimony as to the trade name, Quaaludes, . . . was sufficiently connected with the generic equivalent, methaqua-lone, by the description of the pills, or tablets, by the witnesses and by the crime lab report”); Hulsey v. State, 220 Ga. App. 64, 64-65 (467 SE2d 610) (1996) (holding that State sufficiently linked trade name to controlled substance); Crosby v. State, 150 Ga. App. 804, 805 (4) (258 SE2d 593) (1979) (distinguishing Elrod and holding that State met burden of proof through testimony using controlled substance’s name as listed in Act). See generally Kessinger v. State, 298 Ga. App. 479, 480 (1) (680 SE2d 546) (2009) (holding that State presented sufficient evidence for jury to determine that drugs were oxycodone, a controlled substance, when “pills were contained in a prescription bottle labeled oxycodone, and there was testimony from two experienced witnesses qualified as experts in drug identification that , . . pills’ logo matched that of pharmaceutically prepared oxycodone tablets”).

        See supra note 19.

        Elrod, 143 Ga. App. at 331 (2); see also supra note 19.

        See Physicians’ Desk Reference 121 (62d ed. 2008) (listing “Ambien Tablets” and “Ambien CR Tablets” beneath the entry for Zolpidem Tartrate).

        See Hulsey, 220 Ga. App. at 64-65 (pharmacist testified that “Darvocet N-100 has propoxyphene and it also has acetaminophen in it” and that “Propoxyphene Napsylate is the generic name” for dextropropoxyphene, i.e., the listed name for the controlled substance).

        See Tant, 247 Ga. at 266 (2) (evidence included testimony regarding Quaaludes, the admission of seized pills engraved with “Lemmon 714,” and the admission of a lab report that indicated the pills were “positive for methaqualone,” i.e., the listed name for the controlled substance).

        See Hulsey, 220 Ga. App. at 66 (“[M]ere proof of a trade name for a controlled substance is insufficient evidence to sustain a conviction under the Georgia Controlled Substances Act.” (citing Elrod, 143 Ga. App. at 331 (2))).

       OCGA § 16-10-93 (a).

        Cf. Markowitz v. Wieland, 243 Ga. App. 151, 155 (2) (c) (532 SE2d 705) (2000) (holding, in a civil context, that the threat of filing a lawsuit “does not constitute a threat of injury or damage under the statute”); Rolleston v. Huie, 198 Ga. App. 49, 51 (2) (400 SE2d 349) (1990) (holding that “it is clear that the mere filing of a lawsuit is not the type of humiliating, insulting or terrifying conduct which will give rise to a claim for the intentional infliction of emotional distress”).

        See, e.g., Oglesby v. State, 243 Ga. 690, 692-93 (3) (256 SE2d 371) (1979) (discussing fatal variances between indictments and the proof offered at trial).

       “Person” is defined in our criminal code as “an individual, a public or private corporation, an incorporated association, government, government agency, partnership, or unincorporated association.” OCGA § 16-1-3 (12). We note that the State does not argue that DeLong either directly or indirectly threatened his sister’s person by accompanying her to the District Attorney’s office. And although there was testimony that his sister cried when informed that the charges could not be dropped, we cannot sustain DeLong’s convictions on any purported physical threat because DeLong was not so charged in the indictment. See, e.g., Skaggs-Ferrell v. State, 287 Ga. App. 872, 877-78 (652 SE2d 891) (2007) (“If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.” (footnote omitted)); Simmons v. State, 284 Ga. App. 561, 568 (1) (644 SE2d 434) (2007) (“[A]negations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and . . . the allegations must be adequate to protect the accused against another prosecution for the same offense.”). Additionally, there was no testimony that DeLong made a direct or indirect threat of physical harm to his sister’s person. Indeed, DeLong’s sister testified that, “[DeLong] came to the house and asked would we drop the charges. And I told him, I guess -1 didn’t know if we could or not. And he said that we could go talk to the D.A.’s office. And I told him I wasn’t going up there by myself; that he would have to go with me.”

       “Property” is defined in the criminal code as “anything of value, including but not limited to real estate, tangible and intangible personal property, contract rights, services, choses in action, and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink, and electric and other power.” OCGA § 16-1-3 (13).

        Harrison v. State, 309 Ga. App. 454 (711 SE2d 35) (2011) (citation omitted).

       We leave for another day the question of whether the explicit threat of filing a clearly frivolous lawsuit possibly falls within the ambit of the statute.

        Compare Palmer v. State, 299 Ga. App. 192, 193-94 (3), (5) (682 SE2d 323) (2009) (holding that State presented sufficient evidence to support convictions for threatening a witness in a civil proceeding and for influencing a witness when defendant went to witness’s house, threatened with eviction, and burned husband’s car); Shelnutt v. State, 289 Ga. App. 528, 532-34 (3), (5) (657 SE2d 611) (2008) (same); Johnson v. State, 277 Ga. App. 499, 505-07 (2) (627 SE2d 116) (2006) (sufficient evidence of threat when defendant made extended face-to-face contact with witness and witness testified about, inter alia, gang’s code of silence and consequences for violating same); Carter v. State, 237 Ga. App. 703, 707-09 (3) (516 SE2d 556) (1999) (sufficient evidence of threat when defendant threatened to kill one witness and then made a menacing appearance at another’s home); Thomas v. State, 227 Ga. App. 469, 470 (3) (489 SE2d 561) (1997) (sufficient evidence of threat to witness when defendant “shouted and pounded on the doors and windows trying to enter the victim’s house”); Gonzalez v. State, 175 Ga. App. 184, 184-86 (l)-(6) (332 SE2d 904) (1985) (sufficient evidence of threat to witness when defendant made sinister comments in court and State presented a pistol seized and documents showing plan for “protection” in organized cocaine distribution).

        Higdon v. City of Senoia, 273 Ga. 83, 86 (3) (538 SE2d 39) (2000) (citation omitted).

        See, e.g., U.S. Const, amend. I (protecting the right of freedom of speech); U.S. Const, amend. VII (protecting the right to trial by jury in civil proceedings); Ga. Const, art. I, § 1, ¶ XII (“No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person’s own cause in any of the courts of this state.”); Ga. Const, art. I, § 1, ¶ V (“No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.”).

        See U.S. Const, amend. V

        McCain v. State, 292 Ga. App. 886, 887 (665 SE2d 912) (2008) (footnote and punctuation omitted).

        Hardy v. State, 301 Ga. App. 115, 116 (2) (686 SE2d 789) (2009).

        Id. at 116 (2).

        See Whitaker v. State, 283 Ga. 521, 524-25 (3) (661 SE2d 557) (2008) (holding that, under similar circumstances, “it was not an abuse of the trial court’s discretion to refuse to grant a mistrial”); Parks v. State, 281 Ga. App. 679, 681 (2) (637 SE2d 46) (2006) (same). Compare Clark v. State, 237 Ga. 901, 902 (230 SE2d 277) (1976) (holding that trial court erred in not granting mistrial when State extensively questioned defendant about failure to inform officers of his alibi defense); Gordon v. State, 250 Ga. App. 80, 83 (550 SE2d 131) (2001) (holding that trial court erred in not granting mistrial when State repeatedly stressed defendant’s failure to make a statement to police).


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A0189.
    DiMAURO v. THE STATE.
    (714 SE2d 105)
   Blackwell, Judge.

Following a bench trial in Henry County, Nicholas DiMauro was convicted of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (5), based on, among other things, stipulated evidence of the results of an Intoxilyzer 5000 breath test. DiMauro appeals, asserting that, because no officer read the Miranda warnings to him before field sobriety tests were administered, the court below should have granted his motion to suppress evidence of the results of the field sobriety tests, as well as the Intoxilyzer 5000 breath test, which was administered later. DiMauro also contends that the court erred when it refused to issue a certificate under the Uniform Act to Secure the Attendance of Witnesses from Without the State (the “Uniform Act”), OCGA § 24-10-90 et seq., to secure the appearance of a Kentucky witness to testify about the source code of the Intoxilyzer 5000. We see no error in the denial of the motion to suppress, and with respect to that claim of error, we affirm the judgment below. We conclude, however, that the trial court applied the wrong standard when it refused to issue a certificate under the Uniform Act, and we remand for the trial court to apply the correct standard, consider whether it should have issued a certificate, and if so, determine whether its refusal to do so entitles DiMauro to a new trial.

The record shows that on November 15, 2009, at approximately 4:00 a.m., an officer observed DiMauro driving on 1-75 at a speed of 96 miles per hour and initiated a traffic stop. When the officer first spoke with DiMauro, the officer detected an odor of alcohol. The officer then went to his patrol car and wrote a citation for speeding. When the officer later returned to DiMauro to issue the speeding citation, the officer again noticed an odor of alcohol and observed that DiMauro appeared confused and bewildered. The officer also saw that DiMauro had red and bloodshot eyes.

When asked whether he had consumed any alcoholic drinks, DiMauro at first denied that he had done so, but after he was asked to submit to a roadside breath test, he admitted that he had, in fact, consumed several. DiMauro agreed to take the roadside breath test, and it indicated the presence of alcohol. The officer then asked DiMauro to submit to two field sobriety tests, and DiMauro agreed. In the course of administering these tests, the officer noted that DiMauro lost his balance during the instructional phase of the walk-and-turn evaluation. Concerned that DiMauro might be impaired, the officer called for a second officer — one qualified to perform a horizontal gaze nystagmus (“HGN”) field sobriety evaluation, which the first officer was not — to come to the scene.

DiMauro and the first officer waited approximately 20 minutes for the arrival of the second officer, during which time DiMauro was not free to leave the scene. While they waited, however, DiMauro was not placed in handcuffs or a patrol car, was able to move about freely, and actually returned to his car to get a jacket. When the second officer arrived and performed the HGN evaluation, he detected six out of six clues indicating impairment. Finding DiMauro impaired, the officers placed him under arrest for driving under the influence of alcohol and advised him of his implied consent rights. After DiMauro was transported to the county jail, his breath was tested with the Intoxilyzer 5000, and his alcohol concentration was determined to be 0.105.

1. DiMauro says that the trial court erred when it denied his motion to suppress because the field sobriety tests, including the HGN evaluation, were administered “without his having the benefit of the Miranda warning provided to him prior to those tests.” We have explained before that “[a]n individual must be advised of his Miranda rights, including his right against self-incrimination, only after being taken into custody or otherwise deprived of his freedom of action in any significant way.” Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010) (citation and punctuation omitted). And we have noted that, “although a motorist is deprived of his freedom of action during a traffic stop,” such a deprivation does not always “trigger the rights set forth in Miranda.’’'’ Id. Instead, “[t]he test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary.” Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000) (citation and punctuation omitted).

DiMauro argues that he was in custody at least by the time the HGN field sobriety test was administered, emphasizing the time that elapsed between the initiation of the traffic stop and the arrival of the second officer, as well as the fact that, when the HGN test was administered, he already had been cited for speeding. We find no merit in this argument. The trial court found that DiMauro was taken into custody only after the second officer performed the HGN evaluation and completed his investigation of whether DiMauro was impaired. “[WJhether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.” Harper, 243 Ga. App. at 706 (1) (citation and punctuation omitted).

The determination of the court below that DiMauro was not in custody until after the HGN evaluation and other field sobriety tests were complete is not clearly erroneous. DiMauro was allowed to walk around and was not put into handcuffs or a patrol car while he and the first officer awaited the arrival of the second officer. DiMauro had been informed that he was suspected of driving under the influence and that the second officer had been called to further investigate this suspicion. And the delay occasioned by the need to summon a second officer was only about 20 minutes. See Waters, 306 Ga. App. at 116 (1); Harper, 243 Ga. App. at 706 (1). Although DiMauro was not free to leave while they waited for the second officer to arrive, “not every detention is an arrest.” Harper, 243 Ga. App. at 706 (1). In prior cases, we have held that even lengthier delays did not transform an investigative detention into a custodial arrest. See id. (delay of up to an hour); Aldridge v. State, 237 Ga. App. 209, 213 (3) (515 SE2d 397) (1999) (a delay of 45 to 50 minutes). Under the circumstances presented here, “a reasonable person [in the position of DiMauro] could conclude that his freedom of action was only temporarily curtailed and that a final determination of his status was simply delayed.” Harper, 243 Ga. App. at 706 (1). The trial court’s finding that DiMauro was placed under arrest only after the field sobriety tests were complete is not clearly erroneous.

2. DiMauro also complains on appeal of the refusal of the court below to issue a certificate to secure the appearance of an out-of-state witness — an executive of CMI, Inc., the Kentucky company that manufactures the Intoxilyzer 5000 — to testify about the Intoxilyzer 5000 source code. In its order denying his request for such a certificate, the trial court relied substantially on Davenport v. State, 303 Ga. App. 401 (693 SE2d 510) (2010), in which this Court upheld a refusal to issue a certificate to secure testimony from a CMI witness. Applying the standard set forth in our Davenport opinion, the trial court concluded that DiMauro failed to show that CMI was a “necessary and material witness,” and based on this conclusion, refused to issue the certificate. The Supreme Court, however, recently reversed our decision in Davenport and said that we applied the wrong standard in that case, meaning that the court below applied the wrong standard in this case too. See Davenport v. State, 289 Ga. 399 (711 SE2d 699) (2011).

The Supreme Court explained in Davenport that “necessary and material” is not the standard that a trial court should apply when it considers whether to issue a certificate under the Uniform Act. Instead, the trial court simply must determine whether a witness is “material,” as that term is defined in the Davenport decision. According to the Supreme Court, if a witness is material, the trial court “ ‘may issue a certificate under . . . seal’ that is then presented to a judge of a court of record in the out-of-state county in which the witness is found.” Davenport, 289 Ga. at 401 (citation omitted). It is for the out-of-state judge then to determine whether to issue a subpoena directing the witness to attend and testify in the Georgia criminal proceeding. Id.

Decided July 6, 2011.

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Charles A. Spahos, Solicitor-General, Courtney L. Stewart, Assistant Solicitor-General, for appellee.

Because the court below did not apply the standard adopted by the Supreme Court in Davenport, we remand for the court to apply the correct standard and revisit the request in this case for a certificate under the Uniform Act. If the court below determines that the witness for whom a certificate was requested is a “material” witness, it then must consider whether it ought to have issued a certificate in this case, and if so, whether DiMauro is entitled to a new trial or a new trial conditioned on the issuance by the appropriate out-of-state court of a subpoena to compel the appearance of the witness in Georgia. If the court below determines that no new trial is warranted, the judgment of conviction will stand affirmed, provided that DiMauro may file a timely appeal of that determination.

Judgment affirmed on condition and case remanded with direction.

Barnes, P. J., and Adams, J., concur.

       DiMauro pled guilty to speeding in violation of OCGA § 40-6-181. A charge of driving under the influence of alcohol to the extent he was less safe to drive, in violation of OCGA § 40-6-391 (a) (1) was nol prossed.

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

       The trial court also relied on our opinion in Yeary v. State, 302 Ga. App. 535 (690 SE2d 901) (2010), which the Supreme Court recently reversed as well. See Yeary v. State, 289 Ga. 394 (711 SE2d 694) (2011).


author: Miller, Presiding Judge.

text:
    A11A0338.
    DAMEROW v. THE STATE.
    (714 SE2d 82)
   Miller, Presiding Judge.

Following a jury trial, Jason George Damerow was convicted of child molestation (OCGA § 16-6-4 (a)). The trial court denied Damerow’s motion for new trial. On appeal, Damerow (1) challenges the sufficiency of the evidence supporting his conviction. He further contends that the trial court erred in (2) failing to give the complete pattern jury charge on witness credibility and (3) admitting his prior convictions as impeachment evidence. In addition, Damerow asserts that (4) his trial counsel was ineffective. We discern no reversible error and affirm.

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

(Citations and punctuation omitted.) Fogerty v. State, 304 Ga. App. 546 (1) (696 SE2d 496) (2010).

So viewed, the trial evidence shows that Damerow was the stepfather of the 15-year-old victim, J. S. J. S. testified that in 2006, when she was between 13 and 14 years old, Damerow began grabbing her buttocks. She stated that, eventually, the molestation escalated and Damerow would force her to kiss him. J. S. disclosed the incidents to her mother. Upon being confronted with the allegations, Damerow told the mother that J. S. had asked him to teach her how to kiss. The mother removed Damerow from the residence and obtained a divorce.

Later, in May 2007, Damerow began visiting the residence again. In September 2007, the mother allowed Damerow to move back into the residence. J. S. testified that when Damerow returned to the residence, the molestation continued and escalated further. On or about October 20, 2007, between the hours of 2:30 a.m. and 3:00 a.m., Damerow entered J. S.’s bedroom, laid on top of her, rubbed her breasts, and kissed her on the mouth, neck, and breasts. J. S. further testified that Damerow came into her bedroom and molested her almost every night. Damerow threatened to kill J. S. and her family if she told anyone about the molestation.

Eventually, J. S. disclosed the molestation to her friend, whose father was a police officer. Following J. S.’s disclosure, an investigation was launched. J. S. gave a statement to the police and further participated in a forensic interview concerning the molestation. The forensic interview was recorded by videotape and was played for the jury at trial.

J. S.’s family was referred to counseling by the Department of Family and Children Services (“DFACS”). During the counseling sessions, J. S. told the family counselor about the molestation and her fear of Damerow.

Damerow was arrested and charged with three counts of child molestation. During an interview with police, Damerow denied J. S.’s allegations. Damerow also testified at trial and again denied the molestation allegations. He also denied J. S.’s allegation that he had threatened to kill her and her family. Damerow claimed that J. S. had made up the allegations because he was the disciplinarian of the family and she wanted to have him removed from the residence.

Following the presentation of the evidence at trial, the jury convicted Damerow of one count of child molestation, but acquitted him of the other two counts.

1. Damerow contends that the evidence was insufficient to sustain his conviction. We disagree.

“A person commits the offense of child molestation when such person . . . [d]oes 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[.]” OCGA § 16-6-4 (a) (1). J. S.’s testimony at trial established that Damerow had entered her bedroom, laid on top of her, rubbed her breasts, and kissed her on the mouth, neck, and breasts. Based upon this testimony, the jury was authorized to find that Damerow was guilty of this offense as charged. See id.; Maddox v. State, 263 Ga. App. 507, 508-509 (1) (588 SE2d 305) (2003).

Damerow nevertheless argues that the verdict was against the weight of the evidence, and therefore, he was entitled to a new trial.

OCGA § 5-5-21 specifically empowers trial courts with the authority to weigh the evidence. It provides that a trial judge, in the exercise of a sound discretion, may grant a new trial “in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” On a motion for new trial alleging this ground, the court sits as a “thirteenth juror.” The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

(Citations and punctuation omitted; emphasis in original.) Rutland v. State, 296 Ga. App. 471, 476 (3) (675 SE2d 506) (2009).

The trial court considered Damerow’s arguments in the context of OCGA § 5-5-21, but ultimately decided this claim against him. We discern no error.

As there were no eyewitnesses to the alleged incident, resolution of the issue rested largely upon the testimony of [Damerow] and [J. S.]. Each presented his or her version of [whether the molestation had occurred], and the jury was allowed to consider the history of the relationship between the two and to consider their conduct before and after the incident. . . . This is simply not a case in which the evidence preponderates heavily against the verdict. The trial court did not err in refusing to grant [Damerow’s] motion for new trial.

(Punctuation and footnote omitted.) Taylor v. State, 259 Ga. App. 457, 460-461 (2) (576 SE2d 916) (2003).

2. Damerow further contends that the trial court erred in failing to give the complete pattern jury charge on witness credibility. The Suggested Pattern Jury Instructions on the credibility of witnesses provides as follows:

You must determine the credibility or believability of the witnesses. It is for you to determine which witness or witnesses you believe or do not believe, if there are some whom you do not believe.
In deciding credibility, you may consider all of the facts and circumstances of the case, the manner in which the witnesses testify, their interest or lack of interest in the case, their means and opportunity for knowing the facts about which they testify, the nature of the facts about which they testify, the probability or improbability of their testimony, and the occurrences about which they testify. You may also consider their personal credibility insofar as it may have been shown in your presence and by the evidence.

(Punctuation and footnote omitted.) Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.10.

The record shows that the trial court gave an abbreviated version of the pattern charge, which included the first paragraph of the aforementioned charge, but omitted the second paragraph setting forth the factors for determining witness credibility. Nevertheless, Damerow failed to present any jury charge requests. In the absence of a proper request, the trial court’s omission of the rules by which to test the credibility of witnesses is not erroneous. See Benton v. State, 185 Ga. 254, 257 (6) (194 SE 166) (1937); Giles v. State, 113 Ga. App. 629 (149 SE2d 432) (1966).

3. Damerow also argues that the trial court erred in admitting his prior convictions for impeachment purposes. Again, we discern no error.

OCGA § 24-9-84.1 (a) governs the manner in which a defendant’s credibility may be impeached if he elects to testify. Subpara-graph (3) of the statutory provision pertinently states that “[e]vi-dence that . . . the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement^]” Here, Damerow testified in his own defense at trial. For impeachment purposes, the State introduced evidence that Damerow had prior convictions for felony forgery (OCGA § 16-9-1 (a)), misdemeanor theft by deception (OCGA § 16-8-3 (a)), and misdemeanor giving a false name to a law enforcement officer (OCGA § 16-10-25). Although Damerow’s counsel initially objected to the admissibility of the prior convictions, the trial court overruled his objection. Thereafter, when the prior convictions were formally tendered into evidence, Damerow’s counsel stipulated to their admission.

In light of the stipulation, Damerow’s instant challenge to the admission of his prior convictions has been waived. See Relaford v. State, 306 Ga. App. 549, 553 (1) (702 SE2d 776) (2010) (trial counsel’s failure to object to the admission of defendant’s prior convictions waived the issue). See also Martin v. State, 251 Ga. App. 149 (1) (553 SE2d 827) (2001) (concluding that any objection that defendant had to the admission of the challenged evidence was waived by his stipulation to its admission at trial).

Even if the claim had not been waived, however, the prior convictions were admissible under OCGA § 24-9-84.1 (a) (3) since they each involved dishonesty or making a false statement, and bore directly upon Damerow’s truthfulness and veracity. See Whatley v. State, 296 Ga. App. 72 (673 SE2d 510) (2009) (concluding that a witness’s prior convictions for forgery and giving a false name to a police officer were admissible under OCGA § 24-9-84.1 (a) (3)); Habersham v. State, 289 Ga. App. 718, 720-721 (4) (a) (658 SE2d 253) (2008) (concluding that a defendant’s prior conviction for giving a false name to a police officer was admissible for purposes of impeachment); Scott v. State, 277 Ga. App. 876, 878 (1) (627 SE2d 904) (2006) (“A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.”); Hall v. State, 180 Ga. App. 210, 213 (348 SE2d 736) (1986) (concluding that a defendant’s prior conviction of forgery was “a crime of moral turpitude which [went] directly to the defendant’s truthfulness and veracity”).

4. Damerow next claims that his trial counsel provided ineffective assistance in several respects.

To prevail on a claim of ineffective assistance, appellant 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. Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

(Citations omitted.) Boatright v. State, 308 Ga. App. 266, 267 (1) (707 SE2d 158) (2011). Applying these standards, we turn to address Damerow’s claims.

(a) Damerow first argues that his counsel was ineffective for failing to object to improper testimony that served to bolster J. S.’s credibility.

(i) In this regard, Damerow complains that several of the State’s witnesses — including the mother, the investigating officer, the forensic interviewer, and the family counselor — were allowed to give testimony repeating J. S.’s disclosures regarding the molestation, which reflected upon the consistency and credibility of her statements.

“It is true that a witness’ credibility may not be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth.” (Citations and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 636 (1) (c) (667 SE2d 899) (2008).

Georgia does not allow witnesses to opine that a party or victim is lying or telling the truth, for under OCGA § 24-9-80 credibility is a matter solely within the province of a jury. An expert witness may not testify as to his opinion of the victim’s truthfulness. The courts of this State have allowed an exception to the general rule in limited circumstances when the conclusion is beyond the ken of the average layman. It is only where the nature of the question is such that the factors leading to a conclusion are not known to the common or average man, but are among those things shrouded in the mystery of professional skill or knowledge, that the opinion or conclusion of an expert should be deferred to as to an ultimate issue.

(Citations and punctuation omitted.) Patterson v. State, 278 Ga. App. 168, 171 (628 SE2d 618) (2006). Moreover, contrary to the State’s argument, objectionable testimony that bolsters the victim’s credibility does not otherwise become admissible when the defense “opens the door” by challenging the victim’s credibility. Id. at 172.

More leniency in the evidentiary rule has been granted under the Child Hearsay Statute, OCGA § 24-3-16, which allows testimony from both the child victim and witnesses to the child’s later reaction, even if the hearsay may be bolstering. See Bell v. State, 294 Ga. App. 779, 781 (4) (670 SE2d 476) (2008). Significantly, however, the Child Hearsay Statute only applies to a “statement made by a child under the age of 14 years[.]” OCGA § 24-3-16. Since J. S. was 14 years old when she made the disclosures at issue, the Child Hearsay Statute is inapplicable in this case.

The State nevertheless suggests that the testimony repeating J. S.’s disclosures was admissible as prior consistent statements. We disagree.

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.

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

Here, J. S.’s veracity was challenged on cross-examination, based upon a defense theory that she was motivated to fabricate the molestation allegations because she was vindictive and wanted to have Damerow removed from the residence. Under these circumstances, J. S.’s pretrial statements did not predate the alleged motive. It thus follows that the testimony regarding J. S.’s prior statements was improperly admitted. See Duggan, supra, 285 Ga. at 366 (2); Connelly v. State, 295 Ga. App. 765, 767-768 (3) (673 SE2d 274) (2009).

Notwithstanding the error, however, we conclude that Damerow has failed to show that he suffered prejudice. The videotape of J. S.’s forensic interview was played during the trial, which allowed the jury to form their own assessment of J. S.’s credibility. Moreover, Damerow was able to test J. S.’s credibility during cross-examination. And, significantly, the jury acquitted Damerow of two of the three child molestation offenses. Such reflects that the jury was able to objectively consider the evidence of the charges, despite the improper bolstering, and that trial counsel was not ineffective in his defense of the case. See Gregoire v. State, 309 Ga. App. 309, 311-312 (2) (711 SE2d 306) (2011) (concluding that the defendant’s acquittal of the more serious sex offenses supported a finding that trial counsel was not ineffective when he decided to pursue cross-examination instead of objecting to improper bolstering); Carrie v. State, 298 Ga. App. 55, 64 (7) (679 SE2d 30) (2009) (same).

(ii) Damerow further argues that trial counsel erroneously failed to object to the forensic interviewer’s testimony that J. S.’s demeanor during the interview was consistent with her molestation allegations; the family counselor’s testimony that J. S. was consistent with her allegations and did not appear to be vindictive; and, the mother’s testimony that she believed J. S. when she made the disclosures. His arguments afford no basis for reversal.

“It is not improper bolstering . . . for a witness to express an opinion as to whether objective evidence in the case is consistent with the victim’s story.” (Citation and punctuation omitted.) Mullins v. State, 298 Ga. App. 368, 369 (1) (a) (680 SE2d 474) (2009). The forensic interviewer’s testimony “addresse[d] only [her] objective observations of [J. S.’s] behavior, not whether she found [J. S.’s] statements believable or credible.” (Citation and punctuation omitted.) Brown, supra, 293 Ga. App. at 636 (1) (c). As such, trial counsel’s failure to object to that testimony was not erroneous. Id.

It is a closer question, however, as to the family counselor’s testimony that J. S. “was probably the most consistent teenager that [she] had ever worked with concerning sexual abuse,” that J. S. “ha[d] been the most consistent with her story,” and that “she never felt like [J. S.] was [being] vindictive[.]” See Chauncey v. State, 283 Ga. App. 217, 220 (3) (641 SE2d 229) (2007). But, even if this testimony was improper, no prejudice has been shown from trial counsel’s failure to object. Rather than objecting, trial counsel engaged in cross-examination, which led the family counselor to qualify her prior testimony and state that she “didn’t have any outside evidence to either support or refute the validity of [J. S.’s] story” and that it was not her job to determine whether J. S.’s allegations were supported. “Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy[.]” (Punctuation and footnote omitted.) Al-Attawy v. State, 289 Ga. App. 570, 573 (1) (657 SE2d 552) (2008). Damerow has not shown that trial counsel’s manner of addressing the family counselor’s testimony was unreasonable.

Notably, the record also shows that the mother’s bolstering testimony was elicited from trial counsel during cross-examination. At the motion for new trial hearing, trial counsel explained that he introduced the mother’s testimony that she believed J. S.’s allegation to show that it was “totally inconsistent” with her actions of allowing Damerow to move back into the residence. “[T]he scope of cross-examination is grounded in trial tactics and strategy, and will rarely constitute ineffective assistance of counsel.” (Citation and punctuation omitted.) Williams v. State, 290 Ga. App. 841, 846 (4) (f) (660 SE2d 740) (2008). Trial counsel’s strategic decision to cross-examine the mother in accordance with the defense theory was not patently unreasonable, and Damerow has not shown that the strategy prejudiced his defense. See Colon v. State, 275 Ga. App. 73, 82 (9) (619 SE2d 773) (2005) (trial counsel’s cross-examination of a witness, which elicited testimony that the witness believed the victims, was the result of a valid trial strategy to demonstrate inconsistencies in the testimony and did not amount to ineffective assistance of counsel). See, e.g., Brock v. State, 183 Ga. App. 277, 279 (358 SE2d 613) (1987) (trial counsel was not ineffective for failing to object when the victim’s mother testified that she believed her child “[w]ith all [her] heart,” since the testimony did not prejudice the defense).

(b) In addition, Damerow contends that his trial counsel’s performance was deficient since he failed to object to the prosecutor’s improper closing arguments. He asserts that during closing arguments, the prosecutor improperly expressed his personal observations of J. S.’s demeanor in the videotape of the forensic interview; expressed his personal belief as to whether Damerow had threatened J. S. to prevent her from immediately disclosing the molestation; and stated that the two expert witnesses “know when somebody is telling the truth.”

At the motion for new trial hearing, trial counsel testified that even if the argument regarding the expert witnesses was objectionable, he did not object because he did not want to draw further attention to the argument. To the extent that trial counsel made a reasonable strategic decision not to object to the closing argument, such did not constitute ineffective assistance of counsel. See Fennell v. State, 271 Ga. App. 797, 802 (6) (g) (611 SE2d 96) (2005) (trial counsel’s failure to request a mistrial based on improper comments made by the prosecutor in closing argument was a matter of trial strategy and did not amount to ineffective assistance). See also Mency v. State, 228 Ga. App. 640, 648 (2) (i) (492 SE2d 692) (1997) (trial counsel’s explanation that he did not object to the prosecutor’s closing argument because he did not think an objection would be sustained and he did not want to magnify it reflected reasonable trial strategy and did not equate with ineffective assistance).

Moreover, the trial court instructed the jury that the arguments of counsel were not evidence and thus, could not establish any fact. In light thereof, “[Damerow] cannot show there is a reasonable probability that the outcome of the trial would have been different if counsel had argued differently to the jury.” (Citations and punctuation omitted.) Fennell, supra, 271 Ga. App. at 802 (6) (f). And, the fact that the jury acquitted Damerow of two offenses charged in the three-count indictment “strongly supports the conclusion that [trial counsel’s assistance] fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” (Citations and punctuation omitted.) Henderson v. State, 303 Ga. App. 898, 900 (1) (b) (695 SE2d 334) (2010).

(c) Damerow also argues that his trial counsel erred in failing to object to the admission of his prior convictions, failing to file a pretrial motion to exclude the convictions, and failing to introduce evidence as to the minor nature of the convictions. Again, no error has been shown.

As we stated in Division 3 above, Damerow’s prior convictions were properly admitted under OCGA § 24-9-84.1 (a) (3). “It follows that counsel did not perform deficiently when he failed to make a meritless objection to this evidence.” (Footnote omitted.) Habersham, supra, 289 Ga. App. at 721 (4) (a).

We likewise discern no merit in Damerow’s claim that trial counsel was deficient for failing to introduce evidence as to the underlying facts showing the nature of his prior convictions. While Damerow characterized the nature of his prior convictions as “minor,” his explanation of the circumstances surrounding the offenses further established that his criminal conduct was in fact dishonest and was not legally excusable. To that extent, trial counsel’s stipulation to the prior convictions without presenting details that could prejudice the defense was not unreasonable. Contrary to Damerow’s claim, “trial counsel was not required to delve into further details, which would have placed undue emphasis on the [prior convictions] and confuse the issues and charges pertinent to the instant case.” Boatright, supra, 308 Ga. App. at 270 (1) (b), n. 3.

(d) Damerow contends that trial counsel erred in failing to thoroughly investigate and call essential witnesses on behalf of his defense at trial. His contentions are without merit.

Trial counsel testified that when Damerow gave him a list of potential witnesses, he obtained the assistance of an investigator who made efforts to locate and interview them. Some of the witnesses who were located did not have anything to offer in favor of the defense. Other potential witnesses could not be located or did not respond to his calls.

At the motion for new trial hearing, Damerow presented the testimony of his former co-worker, Brandon Allgood, who claimed that he was available to testify at trial, but was not interviewed. According to Damerow, Allgood’s testimony would have refuted one of J. S.’s allegations that he had grabbed her crotch while Allgood was present. Although Damerow claimed that Allgood was an eyewitness and never went to sleep on the night of the alleged incident, Allgood testified to the contrary that he had “a good buzz” from drinking a 12-pack of beer and fell asleep for a couple of hours at the residence. More importantly, Damerow was neither charged nor convicted of this incident. As such, Damerow has not shown that Allgood was an essential witness to the case or that he was prejudiced from his failure to testify at trial. See Downer v. State, 310 Ga. App. 136, 140 (3) (a) (712 SE2d 571) (2011) (trial counsel was not ineffective for failing to call a witness when there was nothing in the record to indicate that the witness would have given relevant and favorable testimony to the defense). See, e.g., Hudson v. State, 284 Ga. 595, 598 (5) (a) (669 SE2d 94) (2008) (a potential witness’s absence from trial did not result in any prejudice to the defense since the witness’s struggles with alcohol negatively impacted his credibility and ability to properly recall the events).

Likewise, while Damerow claims that J. S.’s younger sister also should have been called as a trial witness, he has not established that her testimony would have been favorable such that there was a reasonable probability that the outcome of trial would have been different. The younger sister stated that “[e] very thing had to have happened behind [her] back,” she could not testify that nothing ever happened, and that she “ha[d] no idea” what happened. See Downer, supra, 310 Ga. App. at 140 (3) (a) (trial counsel’s failure to call the victims’ sister as a trial witness was not ineffective since the evidence did not show that the sister’s testimony would have helped the defense).

Damerow’s argument that J. S.’s mother should have been called as a trial witness for the defense is equally unavailing. Significantly, the mother did testify at trial, and she was cross-examined by trial counsel. The trial court was authorized to find that her additional testimony at the motion for new trial hearing was either cumulative or immaterial to the child molestation offense for which Damerow was convicted. See Lyons v. State, 269 Ga. App. 27, 31 (3) (d) (602 SE2d 917) (2004) (“Trial counsel’s failure to present cumulative evidence does not amount to ineffective assistance.”).

Although Damerow gave the names of several additional individuals who could have served as potential defense witnesses, he did not present their testimony or a legally acceptable substitute to substantiate his claims that their testimony would have been favorable to his defense. As a result, Damerow failed to meet his burden of establishing his ineffective assistance claim. See Lupoe v. State, 284 Ga. 576, 578-579 (3) (b) (669 SE2d 133) (2008).

Decided July 6, 2011

John G. Wolinski, for appellant.

Joseph K. Mulholland, District Attorney, Michael L. Bankston, Assistant District Attorney, for appellee.

(e) Lastly, Damerow claims that trial counsel erred by failing to request the pattern charge on credibility and by failing to object to the trial court’s abbreviated charge on the issue.

As an initial matter, the record shows that trial counsel did in fact interpose an objection to the trial court’s abbreviated charge, but his objection was overruled. While the complete pattern charge was neither requested nor given, Damerow has not shown that he was prejudiced as a result. “[J]ury instructions do not need to track, exactly, the language of pattern jury instructions, so long as the charge is a correct statement of the law and not confusing or misleading.” (Punctuation and footnote omitted.) Watkins v. State, 265 Ga. App. 54 (1) (592 SE2d 868) (2004). His acquittal of two of the indicted offenses reflects the jury’s capability of determining the credibility of the witnesses in accordance with the charge given.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Although the indictment also charged Damerow with two additional counts of child molestation, the jury acquitted Damerow of those charges.

       Under OCGA § 24-9-84.1 (b), a defendant’s convictions are admissible if they are ten years old or less. Although the record fails to contain the certified copies of Damerow’s prior convictions that were admitted as trial exhibits, it is undisputed that the convictions were less than ten years old.

       Here, as in Patterson, there was no evidence in this case indicating that the determination of J. S.’s credibility was beyond the ken of the jurors. Id. at 171, n. 5.


author: Doyle, Judge.

text:
    A11A0418.
    DANIELS v. THE STATE.
    (713 SE2d 689)
   Doyle, Judge.

Following a jury trial, Vandy Mack Daniels was convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. Daniels appeals the denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred by requiring him to wear visible shackles during the trial, failing to merge his conviction for aggravated assault and armed robbery, and improperly instructing the jury on aggravated assault. For the reasons that follow, we affirm Daniels’s convictions in part, vacate his aggravated assault conviction and sentence, and remand the case for resentencing.

Viewed in favor of the verdict, the record shows that Chearica Gardner was working at a Time Saver convenience store in Bulloch County on March 6, 2006. A masked man with a gun entered the store and climbed onto the counter. Gardner walked over to him with her hands raised, and the man demanded money, fired the gun into the air, and said, “I’m not playing with you.” He then shot her in the arm, and Gardner gave him a money bag containing the store’s extra change. As Gardner unsuccessfully attempted to open the cash register, the gunman shot her in the head and then left the store. Gardner described the gunman as approximately five feet and six or seven inches tall; she was unable to identify his race or any other characteristics because he was wearing a mask and gloves. Gardner was transported to the hospital, where doctors were able to extract the bullet from her head. The manager of the convenience store audited the register and determined that the gunman had absconded with approximately $200. The manager also gave the police a copy of the videotape of the robbery, which was subsequently shown to the jury during the trial.

On March 7, 2006, a man wearing a ski mask with aluminum foil under it and carrying a silver revolver and a bank bag entered a Quick Stop convenience store in Millen, Georgia. The man screamed at the cashier, pointed the gun at her, demanding that she put money in the bank bag, and told her, “I ain’t playing with you, bitch.” The man “pull[ed] the hammer back two or three times,” but the gun did not fire. The cashier handed the man money from three cash registers and a money bag containing dollar bills, the man ran out of and behind the store, and one of the employees chased him. Daniels was apprehended shortly thereafter, lying on the ground near railroad tracks. Police recovered from Daniels a chrome-plated revolver, gloves, two bank bags full of money, a ski mask, and an aluminum foil mask.

The GBI crime lab performed a ballistics analysis on the gun recovered from Daniels following the March 7 armed robbery at the Quick Stop, a bullet recovered from the Time Saver store, and the projectile recovered from Gardner’s head. According to the firearms examiner, the bullet recovered from Gardner’s head was fired from the revolver found next to Daniels following the subsequent Quick Stop robbery, and the bullet recovered from the Time Saver store was “probably” fired from the same revolver.

Daniels was charged with armed robbery, aggravated assault, kidnapping, and possession of a firearm during the commission of a crime. He was acquitted of kidnapping and convicted on the remaining counts. The trial court denied Daniels’s subsequent motion for new trial, and this appeal followed.

1. Daniels argues that the evidence was insufficient to sustain his conviction because it merely showed that he possessed the gun from which the bullet recovered from Gardner’s head was shot. He further contends that “[t]he reliable physical evidence — referring to the established fact that . . . Daniels is at least two inches taller than the suspect — in fact, contradicts the notion that. . . Daniels is that person.” This enumeration is without merit.

In determining the sufficiency of the evidence to sustain a criminal conviction, we view the record in the light most favorable to the verdict, and without affording the defendant a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

Daniels’s characterization of the evidence is incomplete. The State presented evidence that Daniels was apprehended immediately after the Quick Stop robbery, and he was found with a mask, bank bags containing money, and a gun; the bullet removed from Gardner’s head following the Time Saver robbery the previous day was fired from the gun recovered next to Daniels after the Quick Stop robbery. In both incidents, the masked assailant ran into a convenience store, demanded money, told an employee that he was “not playing,” pointed a gun at an employee, and pulled the trigger. Further, the jury viewed the video surveillance from the Time Saver robbery. This evidence was sufficient to support Daniels’s conviction in this case. The fact that the victim was unable to identify the masked gunman and, after being shot in the arm and the head, estimated that her assailant was two inches shorter than Daniels does not demand a reversal; the weight of such evidence was a matter within the exclusive province of the jury.

2. Daniels contends that the trial court erred by requiring him to be shackled during the trial. We find no reversible error.

This case was initially scheduled for trial on July 18, 2007. Immediately after Daniels was brought into the courtroom from the holding cell, he got into an argument with trial counsel, and Daniels threatened to kill counsel when he was released from prison. The trial court relieved counsel, appointed new trial counsel, and rescheduled the trial for January 31, 2008.

Daniels was issued civilian clothing by the sheriffs department to wear during the rescheduled trial. Before the trial began, Daniels ripped the inseam of the pants from the crotch to the ankles, and he ripped all of the buttons off of his shirt. The sheriffs department arranged for a second set of civilian clothing, which Daniels wore into the courtroom during the trial court’s preliminary instructions to the jury. Daniels returned to the holding cell, and when the deputy went into the cell to retrieve him, he found Daniels standing in his underwear with his shirt again ripped down the center. The deputy then gave Daniels a jail jumpsuit to wear, but Daniels ripped that as well. After testimony from the deputy and argument from the prosecutor and trial counsel, the trial court required Daniels to be shackled in the courtroom for the remainder of the trial, stating that

[t]he [c]ourt is highly concerned about the safety of those individuals that are responsible for maintaining Mr. Daniels while he’s here at the courthouse and highly concerned about the safety of all court personnel and especially the 13 jurors that are here with us today along with the safety of his counsel. . . . And based upon his threats to his previous counsel in the transcript dated July 18th of 2007 and also his actions this morning here at the courthouse, the [c]ourt is going to bring Mr. Daniels back in with his jumpsuit[,] and he will also be cuffed and shackled at this point.

When the jurors returned to the courtroom, the trial court instructed them that

[n]ow it may appear that Mr. Daniels is dressed a little bit differently than he was when we first came in here. I’m instructing you not to take that into consideration in your final deliberations. He has a right to a trial by jury. That’s why you’re here. And you’re under oath to take the evidence that’s presented from this witness stand and make a determination on that.

Daniels maintains that the trial court abused its discretion by ordering him to be tried in shackles because he “was not a flight risk [and t]here was no evidence that he was physically combative or that — outside of his apparent animus toward the previous public defender — he was a threat to anyone.”

“It is well established that ‘the accused, while in the presence of the jury, should be free of indicia of guilt such as wearing shackles or prison garb, or being surrounded by uniformed security personnel, or anything else that might infringe upon the presumption that he is innocent.’ ”

However, there is no question that every court has the power to preserve and enforce order in its immediate presence, and as near thereto as is necessary to prevent interruption, disturbance, or hindrance to its proceedings. And, where the court is familiar with the defendant’s background of violent and disruptive behavior, it is within its sound discretion as to the necessity and extent of restraint to be imposed upon a disorderly defendant to prevent disruption of orderly court proceedings. . . . [Thus, a]t trial, where there is good and sufficient cause, the court has discretion in requiring a defendant to be handcuffed or shackled for security reasons. Abuse of discretion is the test on appeal where restraining devices have been used in the trial court.

Here, Daniels was accused of shooting the victim in the head, and there was evidence that he attempted to shoot the employee in the subsequent robbery; he had threatened to kill his previous counsel in this case; he was involved in a physical altercation at the jail; and he repeatedly destroyed and removed his clothes in the holding cell during the trial, despite his assurances that he would stop doing so. And the trial court properly instructed the jury to disregard Daniels’s appearance and to reach a decision based solely on the evidence. Under these circumstances, we find no abuse of discretion in the trial court’s requirement that Daniels be shackled during the trial.

3. Daniels argues that the trial court erred by failing to merge his aggravated assault and armed robbery convictions as a matter of fact. We agree.

In the indictment, the State alleged that Daniels committed armed robbery by “unlawfully, with the intent to commit theft, [taking] property, to wit: U. S. currency, from the immediate presence of Chearica Gardner, by use of an offensive weapon, to wit: a .22 caliber RG revolver. ...” The indictment charged Daniels with committing aggravated assault by “unlawfully mak[ing] an assault upon the person of Chearica Gardner, with intent to rob by pointing a .22 caliber RG revolver at said victim and demanding that she give him the money and then firing said weapon at her three times. ...”

“To determine if the aggravated assault[ was a] lesser included offense[ ] of the armed robber[y], we apply the ‘required evidence’ test set forth in Drinkard v. Walker. Under that test, we examine whether each offense requires proof of a fact which the other does not.”

Armed robbery (OCGA § 16-8-41) requires an intent to rob, the use of an offensive weapon, and the taking of property from the person or presence of another. Aggravated assault with intent to rob (OCGA § 16-[5]-21 (a)) requires an assault upon the victim, with the intent to rob. An assault takes place when a perpetrator either attempts to commit a violent injury to the person of the victim or commits an act which places the victim in reasonable apprehension of immediately receiving a violent injury.

Decided July 6, 2011.

Peter D. Johnson, for appellant.

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

Our Supreme Court has

concluded that armed robbery contained a requirement — the taking of property — that aggravated assault did not, but that aggravated assault with intent to rob did not require proof of a fact which armed robbery did not. Both crimes required proof of an intent to rob, and the assault requirement of aggravated assault — that the defendant attempt to commit a violent injury to the victim or place the victim in reasonable apprehension of receiving a violent injury — was the equivalent of the “use of an offensive weapon” requirement of armed robbery.

Therefore, under Lucky, the aggravated assault with intent to rob conviction merged into the armed robbery conviction. Thus, we vacate Daniels’s conviction and sentence for aggravated assault and remand the case to the trial court for resentencing.

4. Our holding in Division 3 “moots [Daniels’s] contention regarding the trial court’s jury charge on aggravated assault.”

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

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

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a).

       OCGA § 16-11-106 (b) (1).

       See Duffie v. State, 301 Ga. App. 607 (688 SE2d 389) (2009).

       The firearms examiner testified that “there is a possibility” that the bullet recovered from the Time Saver store “could have been fired from another gun.”

       (Citation omitted.) Culver v. State, 290 Ga. App. 321 (659 SE2d 390) (2008).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Mullins v. State, 267 Ga. App. 393, 395 (1) (a) (599 SE2d 340) (2004); Hardy v. State, 223 Ga. App. 597, 598-599 (2) (478 SE2d 423) (1996).

       See Culver, 290 Ga. App. at 322.

       Trial counsel objected to the shackles, which were visible to the jury, and suggested that the court instead require Daniels to wear a shock belt under his clothing, but the sheriffs department did not have one.

       The trial court also noted that it had considered Daniels’s “previous history with the Department of Corrections” and a “situation[ ] at the county jail” involving a fight with another inmate.

       Daniels was wearing a jail jumpsuit, which was his fourth set of clothing for the day.

       The trial court repeated this instruction during the charge to the jury.

       (Punctuation omitted.) Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990).

       (Citations and punctuation omitted.) Dennis v. State, 170 Ga. App. 630, 632 (3) (317 SE2d 874) (1984).

       At a previous bond hearing, the prosecutor advised the trial court that Daniels was arrested and charged with escape in 1984 and twice in 1986.

        See Allen v. State, 248 Ga. App. 79, 83 (3) (545 SE2d 629) (2001) (“The decisions of this court make it clear that when physical restraints are necessary and are observed by the jury in a criminal case, the trial court must instruct the jury that the use of physical restraints on the defendant has no bearing on the defendant’s guilt or innocence and should not be considered by them during their deliberations.”) (punctuation omitted).

       See Corbin v. State, 240 Ga. App. 788, 788-789 (1) (525 SE2d 365) (1999) (trial court did not abuse its discretion by requiring the defendant to wear visible restraints during the jury trial because the defendant “had threatened the judge and everyone with whom he came into contact the day before,” and the court gave a limiting instruction); Dennis, 170 Ga. App. at 632 (3); Jivens v. State, 215 Ga. App. 306, 307 (4) (450 SE2d 328) (1994) (no abuse of discretion in requiring jail clothing and shackles because the defendant previously defecated on a table, telling a sheriffs deputy that “that’s what he thought about the court,” and he removed all of his clothes on the way to court and had to be physically restrained). Compare Allen, 248 Ga. App. at 82 (2) (abuse of discretion to require visible restraints because there was no evidence that the defendant had attempted to escape or that he exhibited disruptive conduct before the court or threatened anyone, and the court failed to give a curative instruction to the jury).

       281 Ga. 211 (636 SE2d 530) (2006).

       (Punctuation omitted.) Long v. State, 287 Ga. 886, 888 (2) (700 SE2d 399) (2010).

        Lucky v. State, 286 Ga. 478, 481 (2) (689 SE2d 825) (2010).

        Long, 287 Ga. at 888-889 (2), citing Lucky, 286 Ga. at 481 (2).

       See Lucky, 286 Ga. at 482 (2).

       See Long, 287 Ga. at 889-890 (2).

       Id.


text:
    A11A0470.
    HAMMOCK et al. v. ISSA.
    (713 SE2d 717)
   Doyle, Judge.

James Hammock and Emily Hammock appeal the denial of their application for confirmation of a foreclosure sale under power, arguing that the order was not supported by the evidence. We disagree and affirm.

The material facts are not in dispute. The Hammocks sold their Stockbridge home to Michael Shane Issa in exchange for a promissory note in the amount of $319,500 and a deed to secure debt. The deed included a power-of-sale provision authorizing the Hammocks to conduct a nonjudicial foreclosure in the event of default. As alleged in the Hammocks’ subsequent report of foreclosure sale and application for confirmation of foreclosure sale under power, Issa defaulted on the note by failing to make payments when due, to provide proof of insurance, or to timely pay the taxes on the property. After publishing the foreclosure notice, the Hammocks offered the property for auction on June 1, 2010. The Hammocks, who were the only bidders, purchased the property for $230,000. The Hammocks then filed their petition for confirmation of the sale pursuant to OCGA § 44-14-161.

At the confirmation hearing, the Hammocks established that the sale was properly noticed and advertised and then submitted the testimony of their expert appraiser, Tim Ballew. Ballew testified that in his opinion, the fair market value of the property was $230,000. To reach this conclusion, Ballew reviewed the tax records of the property to discern physical data, including zoning and square footage, visually inspected the outside of the property from the street, and compared it to recent sales of similar homes in the area. Ballew’s written appraisal was also admitted into evidence without objection. Issa put forth no evidence of value, expert or otherwise, to contradict Ballew’s opinion. Instead, he cross-examined Ballew as to whether it was necessary to conduct an interior inspection of the house to conduct the appraisal. Ballew responded:

I don’t feel that an interior inspection would have made much of a difference on this property. ... It was consistent with the other properties in the neighborhood and certainly consistent with the sales that I use to support value. . . . Certainly there are issues that could be unknown to me that would affect value, but from the street there were none that were obvious.

Issa followed up by asking, “[Sjince we have some assumption there’s some room for a variable in there?” Ballew responded, “[P]ossible. Depending on condition. But like I said, at the time I inspected the property it appeared to be in average condition and consistent with the condition of other homes in the neighborhood.”

Issa then took the witness stand and testified that he installed “granite throughout the house,” a glass cook top, new sinks, and two new pool pumps. He also built an outdoor kitchen and a gazebo, but he did not complete those projects because of financial limitations. According to Issa, he properly maintained the property, with the exception of the lawn and the pool, which was no better or worse in condition than when he purchased the property. Issa admitted “the pool is green.” While he gave no values or actual expense costs, he testified he had “put a lot of time, money, and effort into this home.”

Following the hearing, the trial court denied the application to confirm the sale, concluding in its order:

Upon consideration of the evidence presented, the arguments of the parties, and the record as a whole, the Court finds that the Plaintiff has failed to demonstrate to a preponderance of the evidence that the foreclosure sale yielded the fair market value of the property. Specifically, the Court finds that the Plaintiffs appraiser failed to account for substantial improvements to the interior of the residence in developing his opinion of the market value of the subject property.

“A trial court cannot confirm a foreclosure sale unless it is satisfied that the property so sold brought its true market value. True market value is the price that the property will bring when it is offered for sale by one who is not obligated, but has the desire to sell it, and is bought by one who wishes to buy it, but is not under a necessity to do so.” The

[v]alue on the date of sale is a factual question to be resolved by the trier of fact. In a proceeding for confirmation of a foreclosure sale of real property, the judge sits as a trier of fact, and his findings and conclusions have the effect of a jury verdict. Where the trial judge, sitting as the trier of the facts, hears the evidence, his finding based upon conflicting evidence is analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.

Decided July 6, 2011.

Isenberg & Hewitt, Ryan L. Isenberg, for appellants.

“Our review of the trial court’s determination of true market value is whether the record contains any evidence to support the findings of the trial court and not whether the evidence upon which the findings were based is the most accurate.” “Furthermore, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.”

Here, although Issa did not present expert testimony regarding the value of the property, he did contest the accuracy and validity of the Hammocks’ expert’s valuation, particularly Ballew’s failure to conduct an interior inspection of the home. Issa testified about specific improvements to the property not known by Ballew. And even though Ballew testified these unknown improvements would not have changed his opinion of the property’s value, it was within the trial court’s discretion to find the expert’s testimony as to valuation unpersuasive based, at least in part, on his failure to inspect the interior of the property. “The trial court is the judge of the credibility of the witnesses and of the weight to be given the evidence,” and we will not disturb the trial court’s decision to reject Ballew’s opinion. Because the trial court was not satisfied that the property sold for its true market value and there was evidence to support that determination, we affirm the trial court’s order denying the Hammocks’ application for confirmation.

Judgment affirmed.

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

Michael S. Issa, pro se.

       This price was based on an appraisal of the property conducted by Tim Ballew on May 28, 2010, just a few days before the sale.

       Ballew has been certified in real estate appraisal since 1992 and performed over 20,000 appraisals.

       (Punctuation omitted.) Statesboro Blues Dev. v. Farmers &c. Bank, 301 Ga. App. 851, 852 (690 SE2d 205) (2010). See OCGA § 44-14-161 (b).

       (Punctuation omitted.) Trefren v. Freedom Bank of Ga., 300 Ga. App. 112, 113 (684 SE2d 144) (2009).

       (Punctuation omitted.) REL & Assoc. v. Fed. Deposit Ins. Corp., 304 Ga. App. 33, 34-35 (1) (695 SE2d 370) (2010).

       (Punctuation omitted.) Statesboro Blues Dev., 301 Ga. App. at 852.

       Our opinion does not, as the Hammocks argue, impose a requirement that an appraiser conduct an interior inspection. Instead, as required by the standard of review, we defer to the trial court regarding its determinations as to credibility and the weight of the evidence.

        Chamblee Hotels v. Chesterfield Mtg. Investors, 287 Ga. App. 342, 345 (651 SE2d 447) (2007).

       See OCGA § 44-14-161 (b); Govt. Nat. Mtg. Assn. v. Belue, 201 Ga. App. 661, 661-662 (1) (411 SE2d 894) (1991); American Century Mtg. Investors v. Strickland, 138 Ga. App. 657, 660-661 (1) (227 SE2d 460) (1976).