author: Boggs, Judge.

text:
    A13A0126.
    GARCIA-CARRILLO v. THE STATE.
    (746 SE2d 137)
   Boggs, Judge.

Manuel Garcia-Carrillo appeals from his convictions of trafficking in cocaine, driving without a license, and following too closely. He contends that the trial court erred by denying his motion to suppress and by admitting into evidence three post-arrest telephone conversations recorded through a wiretap. He also asserts that his trafficking conviction must be reversed as a result of insufficient evidence of identity. For the reasons explained below, we affirm.

When reviewing the sufficiency of the evidence,

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

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

So viewed, the record shows that a known cocaine trafficker named Ada Cordero was the target of a police investigation that included a wiretap on Cordero’s telephone. On June 23, 2009, police intercepted telephone calls between Cordero and “a Hispanic male that was going by the name of Manolo and Potrillo.” A police sergeant with four years of experience in the narcotics unit and past work in hundreds of undercover operations testified that it is “extremely common” for a person in a drug trafficking organization to have multiple aliases.

On June 24, 2009, the police intercepted several telephone calls implicating Manolo/Potrillo in Cordero’s drug trafficking organization. Based upon one of these phone calls, police believed that Manolo/Potrillo lived in number 904 of the Chatelaine Apartments and consequently began conducting surveillance outside Apartment 904. The same day, police officers observed appellant come out of the breezeway from Apartment 904 and get into a white Nissan Sentra. They followed appellant as he drove to a restaurant associated with Cordero. While appellant was driving, police intercepted a telephone call between Cordero and Manolo/Potrillo in which Manolo/Potrillo stated he was “close by” and would “be there shortly.” A few minutes later, the same officer who had observed appellant enter the white Nissan outside Apartment 904 saw him pull into the restaurant parking lot with the same vehicle while talking on a cell phone, park, and enter the restaurant through the back entrance. In a second telephone conversation between Cordero and Manolo/Potrillo intercepted at the same time the police officer observed appellant talking on the phone while pulling into the restaurant parking lot, Cordero reminded Manolo/Potrillo that she “said through the back” and he replied, ‘Yes, I will be back there in a minute.”

The following day, police intercepted a call between Cordero and Manolo/Potrillo which indicated that Manolo/Potrillo would soon be involved in a drug transaction with another group. While conducting surveillance of Apartment 904, police observed appellant get out of his white Nissan and enter Apartment 904. At the same time, an SUV pulled into a parking space near the apartment, and two additional people entered the apartment. Several hours later, appellant left the apartment carrying a black trash bag and a pizza delivery box and placed them in the back seat of the Nissan, where “[h]e started rumbling around with something else in there.” The officer could not see what appellant was doing in the back seat. After appellant got in the front seat of the car, another man came out of Apartment 904 and got into the passenger seat.

When appellant drove away, the police decided that

in order to try to figure out what was happening and who was involved in this two-day event that’s going on ... we were going to do what they call an ID stop or identification stop. A marked uniform officer was going to come up, follow behind the vehicle, wait for a traffic violation to occur and then conduct a traffic identification. Basically, we were going to identify who he was, find out what was happening at that time with the driver.

When an officer in a marked police truck caught up with appellant on 1-85 southbound at the request of the narcotics team, he “noticed it was following way too closely to a tractor-trailer.” The officer testified that appellant was traveling sixty miles per hour about ten feet behind the tractor-trailer “which is pretty much less than a car length.” After witnessing appellant follow too closely for about a half mile, the officer activated the blue lights on his truck and stopped appellant. He explained that when the narcotics team requests an “ID stop,” he must develop his own probable cause for the stop.

When the officer informed appellant that he stopped him because he was following too closely and asked for his driver’s license, appellant stated “he didn’t have one, that he had a Mexican driver’s license.” Appellant then handed the police officer a Mexican driver’s license and a Mexican consulate card, explaining that he had nothing else. When specifically asked, appellant also informed the officer that he did not have a visa or a passport. He stated that he lived in the same apartment that had been under police surveillance.

When the officer checked the names of both men, he learned that the driver did not have a license in Georgia, and that the name provided for the passenger did have a valid driver’s license. He then contacted an investigator with the surveillance team, provided this information, and asked for instruction. Based upon the request of the investigator, the patrol officer arrested appellant for driving without a license and arranged for his transport to jail. During cross-examination in the motion to suppress hearing, the patrol officer testified that he “can’t run a Mexican driver’s license to determine if it’s valid or not,” that he believed the license was in Spanish, and that he did not recall the expiration date.

After arresting appellant, the patrol officer allowed the passenger to leave. He testified in the motion to suppress hearing that

[t]he front passenger was not allowed to take the vehicle due to the fact that I can’t prove who he is on the side of the road. There’s not a picture that returns on his driver’s license return. And it wouldn’t be the first time that somebody has given out their brother or cousin’s information, as well as it’s an arrestable offense to drive without a license on their person.

The officer also testified that he impounded the vehicle because it was stuck in a turn lane and a hazard. During an inventory search following the impound of the vehicle, the officer discovered 987.20 grams of cocaine hidden in an empty toaster box on the back seat. The officer also discovered two “trap[s]” or hidden compartments that are used to transport drugs.

1. Appellant contends that the trial court erred in denying his motion to suppress because (a) the patrol officer lacked probable cause to stop him; (b) the stop was a pretext based upon the instruction of the investigator; and (c) his arrest for driving without a license was illegal.

When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the 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.

(Citations and punctuation omitted.) Teele v. State, 319 Ga. App. 448, 452 (2) (738 SE2d 277) (2012).

(a) We find no merit in appellant’s contention that his motion to suppress should have been granted because the patrol officer lacked probable cause to stop him. First, probable cause to arrest is not necessary to stop a vehicle. Instead, all that is required is “specific and articulable facts that provide a reasonable suspicion that the individual being stopped is engaged in criminal activity.” (Citations omitted.) Jones v. State, 291 Ga. 35, 38 (2) (727 SE2d 456) (2012). In this case, the patrol officer’s testimony about the distance he observed between appellant’s vehicle and the tractor-trailer provided a reasonable suspicion that appellant was following too closely in violation of OCGA § 40-6-49. See Hall v. State, 306 Ga. App. 484, 485 (1) (702 SE2d 483) (2010).

(b) We likewise find no merit in appellant’s claim that his motion to suppress should have been granted because the stop of his vehicle “was pretextual.” “A suppression motion arguing that a traffic stop was pretextual necessarily fails where an officer observes the motorist committing even a minor traffic violation.” (Citations and footnote omitted.) Stearnes v. State, 261 Ga. App. 522, 524 (2) (583 SE2d 195) (2003).

(c) Finally, we conclude that the motion to suppress should not have been granted on the ground that appellant’s arrest for driving without a license was illegal. OCGA § 40-5-20 (a) provides:

No person, except those expressly exempted in this chapter, shall drive any motor vehicle upon a highway in this state unless such person has a valid driver’s license under this chapter for the type or class of vehicle being driven. Any person who is a resident of this state for 30 days shall obtain a Georgia driver’s license before operating a motor vehicle in this state. . . .

As the Supreme Court of Georgia recently explained:

The first sentence of OCGA § 40-5-20 (a) prohibits any person from driving in Georgia without having a valid driver’s license for the vehicle being driven, unless he comes within one of the 13 exempt categories set forth in OCGA § 40-5-21. The second sentence of OCGA § 40-5-20 (a) then requires persons who become “residents” of Georgia, and thus presumably will be driving on this state’s roads on a regular and ongoing basis, to obtain a Georgia driver’s license after a 30-day grace period.

(Citations and footnotes omitted; emphasis in original.) Castillo-Solis v. State, 292 Ga. 755, 757 (2) (740 SE2d 583) (2013). No person is considered a resident of Georgia for purposes of the driver’s license chapter of the Georgia Code “ ‘unless such person is either a United States citizen or an alien with legal authorization.’ ” Id. at 758 (2), n. 5, citing OCGA § 40-5-1 (15). The only applicable exemption here is for

any nonresident of Georgia who could receive a Georgia driver’s license if he or she were a Georgia resident and who “has in his or her immediate possession a valid driver’s license issued to him or her in his or her home state or country’ and, if the foreign license is in a language other than English, “also has in his or her immediate possession a valid international driving permit.”

Id. at 757 (2), n. 4, citing OCGA § 40-5-21 (a) (2). Because appellant admitted to the police officer that he had no visa or passport, and that the only documentation he could present was a Mexican driver’s license written in Spanish and the Mexican consulate card, the police officer had probable cause to arrest him for driving without a license, and his arrest was lawful. See Arroyo v. State, 309 Ga. App. 494, 496 (2) (711 SE2d 60) (2011).

2. Appellant argues that the trial court erred by admitting into evidence, over his hearsay objection, three of Cordero’s telephone conversations recorded the day after his arrest because any conspiracy to commit a crime ended with his arrest. The record shows that the trial court admitted this evidence based upon its conclusion that the conspiracy was ongoing and for the purpose of showing identity — that appellant was the same person as Manolo/Potrillo.

Former OCGA § 24-3-5, in effect at the time this case was tried, provides: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” “This statutory provision, a rule of evidence, does not include any condition precedent of indictment of a co-conspirator before the provision becomes applicable.” Porterfield v. State, 137 Ga. App. 449 (1) (224 SE2d 94) (1976). And, “evidence of the declarations of the other conspirators made during the pendency of the conspiracy, including the wiretap conversations to which appellants had not been parties,” can be admitted under this . statute. (Citation omitted.) Gilstrap v. State, 162 Ga. App. 841, 846 (10) (292 SE2d 495) (1982). Finally,

a conspiracy does not necessarily end simply because one or more of the conspirators have been arrested. So long as the conspiracy to conceal the fact that a crime has been committed or the identity of the perpetrators of the offense continues, the parties to such conspiracy are to be considered so much a unit that the declarations of either are admissible against the other.

(Citations and punctuation omitted.) Cromwell v. State, 218 Ga. App. 481, 483 (2) (462 SE2d 388) (1995).

In a telephone conversation recorded three days after appellant’s arrest, Cordero mentioned “possibly putting some money into Manolo’s account in jail,” and “that there were police everywhere” and she was warned “to be careful.” The day after appellant’s arrest, Cordero asked someone by telephone to look up the charges and bond amount for a friend whom she identified using appellant’s real name, Manuel Garcia-Carrillo, and date of birth. Twenty minutes later, Cordero left a message stating she “just got out of jail,” saw Potrillo, and that she was “checking to see if he has a bond, if he has something to get him out, because that that way cannot be, he (or it) can’t work, man. Listen, I want you to be ready for Lento.” Afew minutes later, Cordero stated in a telephone conversation that Potrillo had been arrested for “no license, driving too closely and cocaine trafficking” and had no bond. She also stated, “That man would make my juice and all my things, a really good person, looking after me!”

We find no error in the admission of this evidence. One of appellant’s defenses at trial was that he was not the same person identified as Manolo/Potrillo in the recorded conversations and that he should not have been charged with possession of the cocaine found in a car owned by another person and concealed in a toaster box in the back seat of the car. The State’s evidence showed that the conspiracy was ongoing after appellant’s arrest, and the recorded phone calls were relevant to show his identity as Manolo/Potrillo, as well as his intent to possess the cocaine found in the back seat of the car he was driving at the time of his arrest. Cromwell, supra, 218 Ga. App. at 483 (2).

3. In his remaining enumeration of error, appellant contends that without the wiretaps which are the subject of Division 2 of this opinion, the State presented insufficient evidence that he was the person identified as Manolo/Potrillo in other wiretap recordings. According to appellant, the remaining wiretap evidence should have therefore been excluded, and his conviction must be reversed. Based upon our holding in Division 2 of this opinion, this enumeration of error has been rendered moot as it is dependent upon a finding that the post-arrest recorded conversations should have been excluded.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

Decided June 27, 2013.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

       This conversation was admitted outside the presence of the jury to show the ongoing drug conspiracy.

       Recordings of three telephone conversations that took place the day after appellant’s arrest were admitted into evidence.


source: Caselaw Access Project

author: MCMILLIAN, Judge.

license: Public Domain

text:
    A13A0182.
    BROWN v. THE STATE.
    (745 SE2d 699)
   MCMILLIAN, Judge.

We granted Dwight Brown’s application for interlocutory review of the trial court’s order denying his motion to quash a second indictment issued against him on the same charges asserted in an earlier indictment. Brown asserts that a pending appeal of the earlier indictment deprived the trial court of jurisdiction to consider the second indictment. He also contests the trial court’s denial of his “Motion to Abate and/or Dismiss for State’s Deliberate and Improper Use of Disqualified Grand Jurors to Obtain Indictment” and his “General and Special Demurrer to Counts 32 Through 35 of the Indictment.” For the reasons set forth below, we affirm the trial court’s denial of Brown’s motions to quash the indictment and for abatement, but we reverse the trial court’s denial of his demurrers as to Counts 32 through 35.

Brown, the former president and CEO of Cobb Electric Membership Corporation (“Cobb EMC”), was first indicted on January 6,2011 (the “First Indictment”). The trial court quashed the First Indictment on March 24, 2011, because it found that it was not returned in open court as required by Georgia law, and the State appealed (the “First Appeal”). This Court affirmed the trial court’s order on March 29, 2012, in State v. Brown, 315 Ga. App. 282 (726 SE2d 764) (2012), but the Supreme Court of Georgia granted the State’s petition for writ of certiorari and the matter remains pending before that Court. State v. Brown, Case No. S12C1305 (decided January 22, 2013).

On July 7, 2011, while the First Appeal was still before this Court, the State obtained a new indictment against Brown (the “Second Indictment”). The appellate record in this case does not contain a copy of the First Indictment; however, according to the trial court, the Second Indictment “contains the same charges as in the First Indictment, but in addition identifies by name many victims age sixty-five or older.” These charges include allegations of theft by taking, filing false statements and writing, conspiracy to defraud Cobb County, conspiracy to defraud the Cobb County School District, and violations of the Georgia RICO statute. In addition, the Second Indictment also contains four apparently new counts, Counts 32 through 35, which assert that Brown, individually and in concert with others, violated OCGA §§ 16-10-32 and 16-10-93 by conspiring to file a civil lawsuit against individuals who allegedly cooperated with the State to bring charges against him.

1. Brown moved to quash the Second Indictment, asserting that the pendency of the prior appeal deprived the trial court of jurisdiction to return an indictment charging the same or similar offenses.

The trial court found “no Georgia case in which Defendant’s novel jurisdictional defense has been raised and addressed,” so the Court relied upon persuasive authority from another state in denying the order. See Irvin v. State, 276 Md. 168 (344 A2d 418) (1975). But Brown’s jurisdictional argument, in fact, has been raised and addressed by this Court, in Roberts v. State, 279 Ga. App. 434 (631 SE2d 480) (2006) (“Roberts II"), overruled on other grounds, DeSouza v. State, 285 Ga. 201, 202, n. 2 (645 SE2d 684) (2007).

In that case, Roberts was indicted on June 29,2001 on charges of child molestation and aggravated child molestation. Roberts v. State, 263 Ga. App. 472, 473 (588 SE2d 242) (2003), aff’d, 278 Ga. 610 (604 SE2d 781) (2004) (“Roberts I"). Roberts subsequently filed a motion for acquittal as a matter of law on speedy trial grounds pursuant to OCGA § 17-7-170. On October 8, 2002, the trial court denied Roberts’ motion for acquittal, id. at 473, and the same month it quashed the indictment after finding that Roberts had not received a statutorily mandated preliminary hearing. Roberts II, 279 Ga. App. at 435.

Roberts appealed the denial of his motion for acquittal, but the State apparently did not appeal the order quashing the indictment. Both this Court and the Supreme Court subsequently affirmed the trial court’s denial of the motion for acquittal. Roberts I, supra. However, due to the time required for resolving the matter in both appellate courts, the remittitur was not returned to the trial court until December 2, 2004. Roberts II, 279 Ga. App. at 435.

“Meanwhile, in November 2002, after Roberts filed his notice of appeal [and two years before the remittitur was returned], a grand jury indicted [him] a second time for the same offenses.” Roberts II, 279 Ga. App. at 435. And “[i]n March 2003, Roberts moved to quash the second indictment, arguing that the State could not indict him while the denial of his motion for acquittal was on appeal.” Id. Following a hearing in May 2003, the trial court denied the motion, and Roberts again appealed. Id. at 435-436.

In considering Roberts’ second appeal, this Court found:

Filing a notice of appeal divests the trial court of jurisdiction in some matters, but not in all. In a criminal case, the filing of a notice of appeal merely deprives the trial court of its power to execute the sentence. Generally a trial court may not alter a judgment or order while an appeal of that particular judgment or order is pending before the appellate court, nor may a trial court initiate proceedings that require a ruling on the exact matter being appealed.

(Citation and punctuation omitted; emphasis supplied.) Roberts II, 279 Ga. App. at 437 (1). Although a trial court is forbidden from taking actions “that directly affect an issue on appealf,] ... such loss of jurisdiction is limited to only those proceedings which either require a ruling on the matters on appeal or directly or indirectly affect such matters.” (Citation and punctuation omitted.) Id. Thus, in a criminal case, “[f]iling a notice of appeal may deprive a court of its power to execute the sentence but it does not supersede every other activity of a trial court.” (Citation and footnote omitted.) Strickland v. State, 258 Ga. 764, 765-766 (1) (373 SE2d 736) (1988).

As the Roberts opinion noted, for example, in Strickland, the Supreme Court found that the filing of a notice of appeal does not deprive the trial court of jurisdiction to “amend an order denying a plea of former jeopardy, nunc pro tunc, to find the plea dilatory and frivolous,” even though the pending appeal involved the same order the court was amending. (Punctuation omitted.) 279 Ga. App. at 437 (1). And as Roberts further noted,

[a] trial court also retains jurisdiction to rule on a motion for withdrawal and substitution of defense counsel, Elrod v. State, 222 Ga. App. 704, 705 (1) (475 SE2d 710) (1996); to appoint appellate counsel, Spear v. State, 271 Ga. App. 845, n. 1 (610 SE2d 642) (2005); to dismiss an appeal and to assist in preparing the record, State v. James, 211 Ga. App. 149, 150 (2) (438 SE2d 399) (1993); and to consider the State’s petition to nolle prosequi a second indictment after the defendant filed a notice of appeal from the court’s former jeopardy ruling on the second indictment. State v. Lejeune, 276 Ga. 179, 184-185 (4) (576 SE2d 888) (2003); Waters v. State, [174 Ga. App. 438, 439 (1) (330 SE2d 177) (1985)].

Id. Based upon that authority and “considering the peculiar facts and circumstances of [Roberts],” this Court concluded that “the trial court did not err in finding that ‘the State had the ability to bring the [second] indictment against [Roberts].’ ” Id. at 437-438.

The real issue, therefore, is whether the return of the Second Indictment required the trial court to issue a ruling on the exact matter being considered in the First Appeal, or whether it directly or indirectly affected such matters. We conclude that it did not. The First Appeal concerns the issue of whether the First Indictment was read in open court as required under Georgia law. The Second Indictment initiated a completely separate prosecution on the same charges, and no contention is raised that the Second Indictment suffered from the same infirmity as the First Indictment. Thus, the trial court’s acceptance of the Second Indictment had no effect on the issue of whether the First Indictment was valid, and the trial court thus had jurisdiction to consider the Second Indictment.

The cases Brown cites in support of his argument are factually and procedurally distinguishable as none of them involve two indictments, i.e., two separate proceedings, addressing the same charges in the same court. The cases of Scroggins v. State, 288 Ga. 346 (703 SE2d 622) (2010), and Chambers v. State, 262 Ga. 200, 201-202 (2), (3) (415 SE2d 643) (1992), each involved a single proceeding and addressed the trial court’s lack of jurisdiction to take further action on the matters pending on appeal in that proceeding.

And the case of Griffin v. State, 266 Ga. 115 (464 SE2d 371) (1995), involved two indictments for the same murder in the superior courts of two separate counties. Our Supreme Court first addressed the issue of the counties’ concurrent jurisdiction, holding that the first county to take jurisdiction over the charges retained it, preempting jurisdiction in other counties for all crimes arising out of the same conduct. Griffin, 266 Ga. at 115 (1). The Court further found that while an appeal on double jeopardy grounds was pending on the first indictment in the first county, the State, which is considered “a single sovereign” for purposes of double jeopardy could not prosecute Griffin in either county. Griffin, 266 Ga. at 116 (1). “To do so would deny Griffin protection from being forced to ‘run the gauntlet’ a second time before his claim of double jeopardy [can] be reviewed.” (Citations omitted.) Id.

In Griffin, therefore, not only were the two indictments filed in different courts, the trial court in the first county had not quashed its indictment; rather, it remained in effect at the time the second indictment was issued in the second county. The Supreme Court ruled that the second county did not have jurisdiction until the first court released its jurisdiction by quashing the first indictment. Moreover, Griffin involved a claim of double jeopardy, and the United States Supreme Court has found that

the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence [because the defendant would be] . . . forced to endure a trial that the Double Jeopardy Clause was designed to prohibit____[I]f a criminal defendant is to avoid exposure to double j eopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.

(Citations and emphasis omitted.) Abney v. United States, 431 U. S. 651, 660-662 (97 SCt 2034, 52 LE2d 651) (1977). Thus, the appeal in that case stopped any further prosecution until the double jeopardy issue was resolved. No such constitutional concerns are implicated under the facts of this case.

Accordingly, we find under Georgia law that the trial court properly denied Brown’s motion to quash.

2. Brown next asserts that the trial court erred in denying his motion in abatement on the ground that the grand jury that issued the Second Indictment contained individuals who were victims of the crimes alleged by the State. The charges against Brown are based on allegations that he

engaged and participated in a pattern of racketeering activity that included, but was not limited to, the theft of millions of dollars from Cobb EMC, the theft of millions of dollars in patronage capital from Cobb EMC’s members (including Cobb County and the Cobb County School District), and false statements to conceal these thefts from Cobb EMC’s members.

Thus, Brown argues that any Cobb EMC member is victim under the State’s theory of prosecution and accordingly should be disqualified from considering an indictment against him. And on May 27, 2011, prior to the return of the Second Indictment, Brown filed a “Motion to Challenge the Grand Jury Poll, to Disqualify Grand Jurors and Special Demurrer” asserting that five members of the grand jury were members, customers or patrons of Cobb EMC (“the May 27 motion”). No ruling was issued on the May 27 motion, and Brown reasserted this argument as to four of the grand jurors who voted on his indictment in his motion for abatement filed on August 26, 2011, after the Second Indictment was returned.

But under OCGA § 15-12-137.1, with regard to petit jurors,

[a] member of an electric membership corporation shall not be incompetent, based solely on such membership, to serve as a juror in a case in which the electric membership corporation is a party or is interested; provided, however, that if the judge in such case finds that the nature of the case or that the circumstances surrounding a potential juror’s membership in an electric membership corporation may cause a potential juror to have a bias or prejudice for or against the electric membership corporation in that case, the judge may grant a party’s motion to disqualify such member for cause.

And as the trial court found, “[i]f EMC members may serve as petit jurors in cases involving their EMC, then a fortiori they may serve as grand jurors in such cases.” “[T]he law does not require that grand jurors should be impartial and unbiased. In this respect, their position is entirely different from that of petit jurors.” (Citation and punctuation omitted.) In re Hensley, 184 Ga. App. 625, 627 (2) (362 SE2d 432) (1987). See also Sallie v. State, 276 Ga. 506, 514 (14) (578 SE2d 444) (2003) (“a person is not disqualified or incompetent to serve as a grand juror by reason of bias or prejudice on his part, by the fact that he has heard or read about the case under investigation or has even formed or expressed an opinion as to the guilt of the accused”) (citation and punctuation omitted).

But even if membership in the Cobb EMC could be found sufficient to disqualify a grand juror, that disqualification would not be sufficient to support Brown’s motion for abatement. Our courts distinguish between challenges to the qualification of a grand juror that “render the juror disqualified to serve as such in any case,” i.e., disqualification “propter defectum,” and challenges “that disqualify him only in the case involved,” i.e., disqualification “propter affectum.” (Citations omitted.) Farrar v. State, 187 Ga. 401, 403 (1) (200 SE 803) (1939). And the latter provides no ground for a plea in abatement, Williams v. State, 107 Ga. App. 794 (131 SE2d 567) (1963), or to otherwise support the dismissal of the charges. Atkinson v. State, 263 Ga. App. 274 (587 SE2d 332) (2003) (disqualification based on degree of relationship not a ground for quashing the indictment); Bolds v. State, 195 Ga. App. 586 (394 SE2d 593) (1990) (such disqualification is not a viable ground for quashing the indictment).

We agree with the trial court that Brown’s challenge to the grand jurors in this case clearly alleges a disqualification propter affectum, and thus the trial court properly denied Brown’s motion in abatement. See Clackum v. State, 55 Ga. App. 44, 47 (189 SE 397) (1936) (challenge to grand jurors on the ground that they were employees of the company that contributed to a fund for the prosecution of the charges against the defendant alleged a disqualification propter affectum, and thus did not support defendant’s motion to quash indictment or a plea in abatement).

Brown asserts that these cases are distinguishable, however, because he filed the May 27 motion prior to the indictment to alert the district attorney that the grand jury pool contained Cobb EMC members,- and the district attorney failed to remove them. But the earlier motion also alleged a disqualification propter affectum, and thus would not support a dismissal of the charges. And in any event, Brown took no steps to obtain a ruling on his pre-indictment motion. Rather, he waited almost two months after the indictment to reassert the same argument in a motion for abatement, and that motion is the only motion before us. We find, therefore, that the May 27 motion, upon which the trial court never ruled, affords no basis for distinguishing this case from other cases addressing disqualifications propter affectum in post-indictment motions.

3. Brown further argues that the trial court erred in denying his general and special demurrer to Counts 32 to 35 of the indictment. He asserts that the alleged filing of a civil lawsuit against persons cooperating with the prosecution in a criminal case cannot constitute an offense pursuant to OCGA § 16-10-32 or OCGA § 16-10-93.

Brown filed both special and general demurrers to the indictment, and each kind of demurrer presents distinct challenges to an indictment.

A general demurrer challenges the sufficiency of the substance of an indictment. The true test of the sufficiency of an indictment to withstand a general demurrer is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective.

(Citations and punctuation omitted.) Gavin v. State, 292 Ga. App. 402, 402-403 (664 SE2d 797) (2008). And the test of the sufficiency of an indictment on special demurrer

is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.

State v. English, 276 Ga. 343, 346 (2) (a) (578 SE2d 413) (2003). See also Cochran v. United States, 157 U. S. 286, 290 (15 SCt 628, 39 LE 704) (1895). But “[wjhere a defendant challenges the sufficiency of an indictment by the filing of a special demurrer before going to trial, he is entitled to an indictment perfect in form.” (Citations and punctuation omitted.) State v. Grube, 293 Ga. 257, 259 (2) (744 SE2d 1) (2013).

Here, Count 32 of the Second Indictment charges Brown with the offense of influencing witnesses under OCGA § 16-10-93 (a) in that he communicated to potential witnesses a threat of damage to their property with the intent to deter the witnesses from testifying freely, fully and truthfully, by conspiring with the directors of the Cobb EMC to file a lawsuit against persons who allegedly cooperated with the prosecution with regard to his criminal case. Count 33 cites the same conduct to allege a violation under OCGA § 16-10-93 (b) (1) (A), with the intent to influence, delay or prevent the witnesses’ testimony in an official proceeding. Count 34 cites the same conduct to support a charge under OCGA § 16-10-32 (b) (4) that Brown with the intent to hinder, delay, prevent or dissuade the witnesses from assisting in a criminal prosecution directly or indirectly threatened, caused, or attempted to cause them economic harm. And Count 35 cites the same conduct in support of a charge under OCGA § 16-10-32 (b) (1) that Brown, with the same intent and threat, sought to prevent them from testifying in an official proceeding.

But this Court has determined that “threatening to (ostensibly) exercise one’s legitimate right to file a lawsuit is [not] encompassed by [OCGA § 16-10-93 (a)]” because such a threat is “neither a per se threat to a person nor to property.” (Citations omitted.) DeLong v. State, 310 Ga. App. 518, 523-524 (3) (714 SE2d 98) (2011). See also Markowitz v. Wieland, 243 Ga. App. 151, 155 (2) (c) (532 SE2d 705) (2000) (threat of filing a lawsuit “does not constitute a threat of injury or damage” under OCGA § 16-10-93 (a) so as to constitute a predicate act under Georgia RICO). Cf. Rolleston v. Huie, 198 Ga. App. 49, 51 (2) (400 SE2d 349) (1990) (“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” and “[t]he ‘threats’ associated with institution of a civil action cannot and do not constitute duress and are not actionable in tort”) (citation and punctuation omitted; emphasis in original). We conclude that actually exercising one’s right to file a lawsuit, or as alleged in this case, conspiring with others to file a lawsuit, in and of itself, does not constitute a “threat” as required to support the crimes under OCGA §§ 16-10-93 (a); 16-10-93 (b) (1) (A); 16-10-32 (b) (1); or 16-10-32 (b) (4) as alleged in Counts 32 to 35.

Decided June 27, 2013

John F. Salter, Jr., for appellant.

Patrick H. Head, District Attorney, D. Victor Reynolds, John S. Melvin, Assistant District Attorneys, Bondurant, Mixson & Elmore, John E. Floyd, John C. Butters, for appellee.

In denying the demurrers, the trial court relied, in part, upon language in a footnote in DeLong “[leaving] for another day the question of whether the explicit threat of filing a clearly frivolous lawsuit possibly falls within the ambit of the statute.” 310 Ga. App. at 524, n. 32. The trial court concluded that it could not determine at this stage in the proceedings that the State could not prove that the lawsuit was frivolous. But this case does not involve the threat of a lawsuit. Instead, the lawsuit apparently has been filed, and it is incumbent upon the court hearing that case, not the trial court in this proceeding, to review and determine its merits.

Accordingly, the trial court erred in denying Brown’s demurrers to Counts 32 to 35 of the Second Indictment.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Dillard, J., concur.

       Under OCGA § 5-6-45 (a), the filing of a notice of appeal in criminal cases “shall serve as supersedeas in all cases where a sentence of death has been imposed or where the defendant is admitted to hail.” Here, Brown was “admitted to bail,” and bond was posted.

       The trial court’s failure to find Georgia law on point is understandable given the parties’ somewhat inexplicable failure to cite the Roberts case, either below or on appeal, despite its clear application in this case and despite the fact that it expressly distinguishes one of the three principal cases upon which Brown relies.

       258 Ga. at 765 (1).

       Aprosecutionbegins with the return of an indictment. OCGA § 16-1-3 (14). See generally Waters, 174 Ga. App. at 439 (3) (distinguishing proceedings initiated by first indictment from proceedings initiated by second indictment). Each of the indictments here initiated a separate proceeding in the trial court: the First Indictment initiated Case No. 1190058, and the Second Indictment initiated Case No. 1192482. Ct. of App. Docket for Case Nos. A11A2121, A13A0182.

       Accordingly, we find no material distinction between the Roberts case and the case before us. Although in Roberts, the State did not appeal the order quashing the first indictment, and it did appeal that ruling in this case, we do not find this factor to be determinative. Roberts’ appeal sought a ruling that the State was prevented from pursuing the charges against him based upon a speedy trial violation, which, if successful, would have ended the case. Here, the First Appeal seeks to reinstate the First Indictment, which, if successful, merely would result in two indictments for the same crimes, making one of the indictments superfluous. In that event, the State could seek an order of nolle prosequi for the “extra” indictment as such an order “may he entered without the consent of the accused at any time prior to the attachment of jeopardy. OCGA § 17-8-3; [Cit.].” Sanders v. State, 280 Ga. 780, 782 (1) (631 SE2d 344) (2006) (affirming trial court’s consent to nolle prosequi on second of two indictments for murder and related crimes arising out of the death of the same victim). See also Layman v. State, 280 Ga. 794, 795 (631 SE2d 107) (2006) (state did not need consent of defendant, who had successfully demurred to first indictment, to obtain an order of nolle prosequi on two subsequent indictments for the same crime, even though further prosecution would be barred if defendant’s pending motions to quash the indictments had been granted).

       Overruled on other grounds, Washington v. State, 276 Ga. 655, 658 (2) (581 SE2d 518) (2003).

       As the trial court noted, however, the district attorney is not authorized to summarily exclude Cobb EMC members from the grand jury. See Echols v. State, 255 Ga. 311, 313 (338 SE2d 259) (1986).

       Although the trial court found that he had waived his argument regarding the allegedly disqualified grand jurors by failing to obtain a ruling on the May 27 motion, our Supreme Court recently confirmed that challenges to the composition of a grand jury are timely if filed within ten days after arraignment, unless the time for filing is extended by the court, in accordance with OCGA § 17-7-110. Here, the motion in abatement was filed before Brown waived arraignment; thus it was timely. State v. Dempsey, 290 Ga. 763, 765-766 (1) (727 SE2d 670) (2012) (motion filed prior to arraignment meets the statutory deadline). See also State v. Shabazz, 291 Ga. App. 751, 752 (2) (662 SE2d 828) (2008) (where defendant waives arraignment, ten-day period runs from date of waiver).

       We express no opinion, however, on whether filing a lawsuit, accompanied by some other threat, communication or conduct, could fall within the ambit of these statutes.


author: Branch, Judge.

text:
    A13A0194.
    HERNANDEZ-GARCIA v. THE STATE.
    (745 SE2d 706)
   Branch, Judge.

Ublester Hernandez-Garcia was tried by a Gwinnett County jury and convicted of trafficking in cocaine. He now appeals from the denial of his motion for a new trial, asserting that the trial court erred in admitting certain hearsay evidence and in charging the jury on the definition of trafficking. Hernandez-Garcia further claims that the evidence is insufficient to sustain his conviction and that he received ineffective assistance of counsel. We find no error and affirm.

Hernandez-Garcia was tried together with Anselmo Duarte Aguilera, whose conviction we recently affirmed. See Aguilera v. State, 320 Ga.App. 707 (740 SE2d 644) (2013). Many of the relevant facts are set forth in that opinion, as follows:

[I]n 2008 and 2009 a joint task force, made up of both federal and state law enforcement authorities, was conducting an investigation into a large drug trafficking organization operating in the metropolitan Atlanta area. A major target of the investigation was Soccoro Hernandez-Rodriguez, known as “Soco,” a high-level member of the organization.
The task force was able to obtain a warrant to tap Soco’s cell phone; all calls coming to and being made from that number were monitored and, if the call pertained to drug-related activity, the conversation was recorded and transcribed. On October 16 or 17, 2009, the task force received information indicating that Soco was expecting a large shipment of drugs. In response to this information, agents set up surveillance in the area of Indian Trail and Dickens Roads in Gwinnett County on October 17, the location being chosen based upon the GPS coordinates of Soco’s cell phone and the fact that one of his “stash houses” [] was located in that area. Shortly before 2:00 p.m., the task force intercepted a phone call to Soco from another drug trafficker, known only as Titin. A transcript of that call was introduced at trial and read for the jury. During the call, the men negotiated Titin’s purchase of two kilograms of cocaine from Soco.[] Titin indicated that he would have a runner [] pick up the drugs, and Soco told him that the runner should meet Soco at a Shell gas station located at the intersection of Indian Trail Road and 1-85. The men also agreed that the drugs would be exchanged via a vehicle swap, meaning that after Titin’s runner arrived at the designated location, Soco would trade cars with him, leave, and return with drugs in the runner’s car. The men would then swap vehicles a second time, and Titin’s runner would leave with the drugs, without ever actually having handled them. [] Soco and Titin further agreed that Titin would pay Soco for the drugs at a later time.
After hearing this call, the task force immediately placed surveillance teams in the area of the Shell station. Task force agents observed a green Honda Element parked at the gas station and occupied by two Hispanic males, neither of whom exited the car for a period of approximately 25 minutes. Aguilera was later identified as the driver of the Honda and [Hernandez-Garcia] was identified as the passenger.
At 2:01 p.m., agents intercepted a call that Titin placed to Soco, informing him that “the guy will be here in ten short minutes.” Approximately 15 minutes later, Titin called Soco again and told him “the guy is there. Write down the number ..Titin then provided Soco with a telephone number. A little more than half an hour after that call, Soco received a phone call from an unidentified male who informed Soco that he was at the Shell station and asking Soco where he should go from there; Soco responded that the man should wait for him at the gas station. A short time later, agents observed a black Toyota Célica, in which Soco was riding as a passenger, pull into the parking lot of the Shell station. At about this same time, the task force intercepted a phone call from Soco to the telephone number used by the unidentified male, during which Soco identified his car and told the male that he should follow Soco’s car. Agents at the scene observed the Toyota wait as Aguilera pulled the Honda out of its parking space to follow the Toyota. Both cars then proceeded onto Indian Trail Road, with the Honda following behind the Toyota.

Aguilera, supra at 708-709.

The two cars drove a short distance to a small shopping center, located less than a mile from Soco’s Dickens Road stash house. Both cars parked at the shopping center, and the drivers and passengers all exited their vehicles. Agents then observed Hernandez-Garcia standing next to Aguilera while Aguilera and Soco engaged in a “face to face” conversation. Soco and his driver then entered the Honda and drove it away from the shopping center; they returned with the car less than ten minutes later. After the men switched cars for a second time, Hernandez-Garcia and Aguilera left in the Honda, and Soco and his driver left in the Toyota.

When the Honda left the shopping center, task force agents followed it as it entered onto 1-85. After traveling several miles, Hernandez-Garcia and Aguilera apparently began to suspect they were being tailed, and they exited 1-85. Aguilera then began to drive the car erratically, in an apparent attempt to evade the agents. The men eventually drove into the parking lot of a fast food restaurant, where they abandoned the car and ran into a nearby bowling alley. Officers located both men in the bowling alley, and after they returned Hernandez-Garcia and Aguilera to the Honda,

two drug dogs performed a free air sniff around the car. The dogs indicated that narcotics were present in the back of the car, behind the driver’s seat. Agents then opened the car and found a grocery bag on the floor behind the driver’s seat that contained a cereal box. Inside the box were two packages of cocaine, each weighing approximately one kilogram.

Aguilera, supra at 710.

Following the discovery of the cocaine, Hernandez-Garcia and his co-defendant were arrested. During a search of his person incident to arrest, agents discovered that Hernandez-Garcia was carrying a cell phone that was assigned the phone number from which the previously unidentified male had called Soco. In the phone’s contact list, agents found stored the phone numbers of both Soco and Titin. Agents also found a cell phone during their search of Aguilera. The phone number assigned to Aguilera’s cell phone was the same number that Titin had given to Soco as the contact number for Titin’s “guy” waiting at the gas station. Stored in the phone’s contact list was Titin’s phone number.

During an interview following his arrest, Hernandez-Garcia initially gave police a false name, told them he could not remember his address, and denied any knowledge of the cocaine. After admitting his real name, Hernandez-Garcia told police that he had been instructed to pick up the Honda at the Indian Trail Road exit on 1-85. He could not, however, identify the person from whom he was supposed to pick up the car, could not say what he was supposed to do with the car after he picked it up, and claimed not to know the name of the car’s driver, with whom he had been riding.

Two days after Hernandez-Garcia’s arrest the task force concluded its investigation by arresting approximately 45 individuals associated with this particular drug trafficking operation, including Soco. At the time of his arrest, Soco had in his possession the cell phone from which the intercepted calls were made and received. Stored in the contacts of Soco’s cell phone was Aguilera’s phone number.

After his conviction, Hernandez-Garcia filed a motion for a new trial, which was denied. This appeal followed.

1. Hernandez-Garcia argues that the trial court erred when it admitted the transcripts of phone calls between Soco and Titin and between Soco and himself, because such evidence constituted hearsay. We find no error because, as we explained previously, these statements fall within an exception to the hearsay rule. See Aguilera, supra at 711-712 (1). Specifically, we held that the evidence presented at trial supported a finding of conspiracy, given that it

showed that Soco had fronted the drugs to Titin [and] that even after he provided the cocaine to Titin, Soco retained a sufficient interest in the contraband and its subsequent sale to support a finding that he was acting in concert with Titin to distribute the same. See [Melesa v. State, 314 Ga. App. 306, 309 (724 SE2d 30) (2012)]; Peacock v. State, 301 Ga. App. 873, 875 (2) (689 SE2d 853) (2010). The evidence also supported the inference that [Hernandez-Garcia] and his co-defendant were part of this conspiracy, i.e., that they were acting in concert with Soco and Titin to facilitate the sale, purchase, possession, and transportation of a large quantity of cocaine. See Mosley v. State, 296 Ga. App. 746, 751-752 (4) (675 SE2d 607) (2009). And the statements made by Soco, Titin, and [Hernandez-Garcia] over the telephone were made in furtherance of that conspiracy.

Id. Because the fact of a conspiracy was proved, these statements did not constitute hearsay, and the trial court did not err in admitting them.

2. Hernandez-Garcia further contends that the trial court erred in charging the jury on the definition of trafficking, because the charge allowed the jury to convict him of the offense of trafficking by a method not alleged in the indictment. As Hernandez-Garcia acknowledges, however, he did not object to the jury charge at trial. Thus, the charge will provide a grounds for reversal only if it constitutes “plain error.” State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011); OCGA § 17-8-58 (b). To demonstrate plain error with respect to a jury charge, it must be shown that the instruction was erroneous, that the error was obvious, and that there is a reasonable probability that the erroneous instruction affected the outcome of trial. Id. at 33 (2) (a).

The indictment in this case charged Hernandez-Garcia with trafficking in cocaine by knowingly possessing 400 grams or more of a mixture containing at least 10 percent cocaine. In defining the offense of trafficking for the jury, however, the court charged the trafficking statute in its entirety, instructing the jury that

[t]he offense charged in Count 1 ... is a violation of the Georgia Controlled Substances Act, trafficking in cocaine, which provides that any person who knowingly sells, delivers, or brings into this state, or who is knowingly in possession of 400 grams or more of cocaine, or... any mixture with a purity of 10 percent or more of cocaine [,] commits the offense of trafficking in cocaine.

As a general rule, a trial court does not err when it charges a Code section in its entirety, even though some part of that section may be inapplicable to the allegations of the indictment and the evidence presented at trial. Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996). In such circumstances, error will be found only where it appears that the inapplicable part of the charged statute either “misled the jury or erroneously affected the verdict.” (Citation and punctuation omitted.) Gibson v. State, 283 Ga. 377, 381 (7) (659 SE2d 372) (2008). For the jury charge at issue to constitute reversible error, therefore, there must be a reasonable possibility that, as a result of the charge, the jury convicted Hernandez-Garcia of the offense of trafficking in cocaine in a manner not alleged in the indictment. Tidwell v. State, 312 Ga. App. 468, 472 (2) (718 SE2d 808) (2011).

Here, there was no evidence introduced at trial suggesting that Hernandez-Garcia brought the cocaine at issue into the state, that he sold it, or that he delivered it to anyone. Rather, the evidence showed only that he was in knowing possession of the cocaine for a brief period of time. Given these circumstances, we find no reasonable possibility that the jury convicted Hernandez-Garcia of trafficking in a manner not charged in the indictment, and therefore we find no plain error in the jury charge. See Tidwell, supra at 472 (2) (indictment charged defendant with intentionally terrorizing the victim; in instructing the jury, the trial court charged the entire Code section, which provided that a defendant violated the statute when he acted with the intent to terrorize or with reckless disregard of the risk of causing terror; given that all the evidence showed that defendant acted intentionally rather than recklessly, there was no error in the charge); Green v. State, 310 Ga. App. 874, 875-876 (1) (714 SE2d 646) (2011) (where indictment charged defendant with committing armed robbery by use of a gun, and all the evidence supported the conclusion that he used an actual handgun, there was no error in the trial court’s charging of the entire armed robbery Code section, which provided that the crime could be committed with a gun or “by the use of... any replica, article or device having the appearance of [a gun]”) (punctuation and footnote omitted).

3. Hernandez-Garcia also asserts that the evidence was insufficient to sustain his conviction. With respect to this claim of error,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. In determining that question, we consider the inferences that can be logically derived from the evidence presented at trial. 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.

(Citation, punctuation and footnote omitted.) Wade v. State, 305 Ga. App. 819, 821 (701 SE2d 214) (2010).

Hernandez-Garcia argues that the State failed to prove that he knowingly possessed the cocaine found in the Honda. We disagree.

As we explained previously, “it has long been the law that knowledge may be proved by facts and circumstances from which a jury could reasonably infer that a defendant knowingly possessed contraband.” (Citation and punctuation omitted.) Aguilera, supra at 713 (2). Thus, the jury could infer Hernandez-Garcia’s knowledge of cocaine possession from the evidence showing that he and his co-defendant had been sent by Titin to obtain the drugs from Soco and ferry them back to Titin; that Hernandez-Garcia attempted to evade the police; and that when interviewed by the police, Hernandez-Garcia initially gave them a false name, refused to provide them with his address, and professed to be unable to give them any information to support his claim that he had merely been instructed to pick up the Honda at the Indian Trail exit. See Feliciano v. State, 302 Ga. App. 328, 331 (690 SE2d 680) (2010) (defendant’s knowledge of contraband found in hidden compartment of car he was driving supported by fact that he and passenger gave conflicting stories to police about ownership of vehicle and about their destination); Arellano v. State, 289 Ga. App. 148, 150 (1) (a) (656 SE2d 264) (2008) (fact that defendant attempted to evade police served to demonstrate that he had knowledge of contraband in car he was driving). Accordingly, the evidence established that Hernandez-Garcia was in knowing possession of the cocaine and, therefore, sufficed to sustain his conviction for trafficking in the drug.

4. Finally, Hernandez-Garcia claims that he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance, Hernandez-Garcia bears the burden of proving both that the performance of his lawyer was deficient and that he suffered prejudice as a result of this deficient performance. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). If Hernandez-Garcia cannot meet his burden of proving either prong of the Strickland test, then we need not examine the other prong. Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011).

(a) Hernandez-Garcia first argues that trial counsel performed deficiently when he failed to object to the audio recording and transcripts of the phone calls between Soco and the unidentified male on the grounds that there was no witness qualified to authenticate the voices heard on those telephone calls. Specifically, Hernandez-Garcia argues that because no witness was qualified to testify as to whether the voice of the unidentified male heard on the recording was, in fact, his voice, trial counsel should have objected to the admission of the recording and the transcript on that basis. We disagree.

It is well established that in cases where the perpetrator has been heard but not seen, the State may identify the defendant as the perpetrator through voice identification testimony. See Brown v. State, 278 Ga. 369, 369-370 (602 SE2d 834) (2004); Smith v. State, 275 Ga. 326, 327 (2) (565 SE2d 453) (2002). And where the State seeks to prove the defendant’s guilt through voice recognition, the witness identifying the speaker’s voice as belonging to the defendant must have some basis for doing so. Brown, supra at 371 (2) (trial court correctly allowed victim to testify that the voice of an assailant she heard but did not see belonged to the defendant, where testimony concerning voice identification was based on victim’s previous interactions with defendant and knowledge of her voice). Compare Patterson v. State, 287 Ga. App. 100, 101 (1) (650 SE2d 770) (2007) (officer could not testify as to telephone conversation he heard between confidential informant and someone who purported to be defendant; police officer did not know defendant and was therefore unable to say that it was, in fact, defendant speaking on the other end of the telephone line). Here, however, the State did not seek to prove that Hernandez-Garcia was the unidentified male heard speaking with Soco based on voice recognition. Rather, the State relied on the evidence of Hernandez-Garcia’s possession of the cell phone used by the unidentified male to contact Soco to prove that Hernandez-Garcia was the unidentified male involved in the conspiracy. Accordingly, because it did not rely on voice identification to establish Hernandez-Garcia’s guilt, the State was not required to offer voice authentication testimony. Rather, for the recordings at issue to be admissible, the State only had to authenticate the recordings themselves, rather than any voices heard on the tapes.

Here, the witness called by the State to authenticate the recordings and the transcripts testified that she had heard the conversations as they occurred and were recorded; that she had transcribed the conversations as she heard them and as they were being recorded; and that the transcripts accurately reflected the recorded conversations. Thus, this witness successfully authenticated both the recordings and the transcripts. See, e.g., Barnes v. State, 230 Ga. App. 884, 885 (2) (497 SE2d 594) (1998). The witness further testified as to the phone numbers the different calls were made from and to, and she identified one of those numbers as belonging to Soco and another as belonging to Titin. She also testified as to the phone number used by the unidentified male when he spoke with Soco. Other evidence showed that the cell phone found on Hernandez-Garcia’s person at the time of his arrest was assigned the phone number used by the unidentified male. Thus, the evidence supported the inference that Hernandez-Garcia was the unidentified male that spoke with Soco. In light of that evidence, and given that the State did not rely on voice recognition to identify Hernandez-Garcia as the unidentified male heard speaking on the recording, trial counsel had no basis for objecting to this evidence on the grounds that no witness had authenticated Hernandez-Garcia’s voice. It follows, therefore, that trial counsel was not ineffective for failing to offer such an objection. See Vaughn v. State, 301 Ga. App. 55, 60 (5) (a) (686 SE2d 847) (2009) (“[fjailure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance”) (citation and punctuation omitted).

Decided June 27, 2013.

Frances C. Kuo, Charles P. Efstration III, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

(b) Hernandez-Garcia further contends that trial counsel was ineffective for failing to object to the jury charge on trafficking. As discussed in Division 2, however, there was no error in the charge. Trial counsel’s failure to object, therefore, did not constitute deficient performance. Vaughn, supra at 60 (5) (a). Moreover, given our holding in Division 2 that there is no reasonable possibility that the charge affected the outcome at trial, Hernandez-Garcia cannot show that he was prejudiced by his counsel’s failure to object to that charge. See Williams v. State, 290 Ga. 533, 538 (2) (c) (722 SE2d 847) (2012).

Judgment affirmed.

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

       OCGA § 16-13-31 (a) (1).

       Testimony at trial established that a stash house was either a residence or a commercial building used by drug traffickers to store their drugs and their cash. The task force had identified several stash houses used by Soco, and had identified the house on Dickens Road as a “transaction house,” meaning that it was a location used to facilitate the actual sale of narcotics.

       The men negotiated the transaction using certain code words commonly utilized by drug traffickers to refer to narcotics (“material” or “product”), kilograms (“keys” or “kids”), and money (“tickets”). Testimony identifying and explaining those code words was introduced at trial.

       Testimony at trial showed that runners are the members of a drug trafficking organization who facilitate drug transactions by ferrying the money and/or drugs necessary for those transactions.

       A DEA agent testified that vehicle swapping was a common method used by drug traffickers to facilitate the clandestine exchange of drugs and/or money.

       This phone number was stored under the name Gua D Titin. A DEA agent testified that the word “gua” was Spanish, the literal translation of which was “guy” or “dude.” He further explained that drug traffickers used this word to refer to an individual who served as a runner for or otherwise worked for another member of their organization. Thus, the name Gua D Titin would translate into worker or runner of Titin.

       OCGA § 24-3-5 provides: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” This statute was in effect at the time of Hernandez-Garcia’s trial. Effective January 1, 2013, this Code provision was replaced by OCGA § 24-8-801 (d) (2) (E) which provides, in relevant part, that the following evidence shall not be excluded under the hearsay rule: “[a] statement by a coconspirator of a party during the course and in furtherance of the conspiracy. . . .”

       OCGA § 16-13-31 (a).


text:
    A13A0197.
    DUDNEY v. THE STATE OF GEORGIA DEPARTMENT OF DEFENSE et al.
    (745 SE2d 713)
   Boggs, Judge.

Larry Dudney, a former brigadier general and joint staff director for the Georgia Army National Guard, appeals from the trial court’s dismissal of his complaint against the State of Georgia Department of Defense, Jim Butterworth in his official capacity as the adjutant general of the State of Georgia, and William Nesbitt in his official capacity as the former adjutant general of the State of Georgia. Dudney contends the trial court erred in concluding: (1) that his complaint for damages under OCGA § 45-1-4 (e) (1) (hereinafter “the whistleblower statute”) is barred by the intra-military affairs doctrine; and (2) that he is not a “public employee” protected by the whistleblower statute. For the reasons explained below, we affirm.

On appeal, we review the trial court’s grant of a motion to dismiss de novo. South Point Retail Partners v. North American Properties, 304 Ga. App. 419, 420 (696 SE2d 136) (2010).

A motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Stendahl v. Cobb County, 284 Ga. 525, 525-526 (1) (668 SE2d 723) (2008).

So viewed, the record shows that Dudney filed a verified complaint against the defendants asserting a single cause of action under the whistleblower statute. Dudney contends that he was terminated by his immediate supervisor, Adjutant General Willia m Nesbitt, after he made an August 15, 2011 report to the Department of the Army Inspector General about “highly disturbing ethical issues and misconduct” by Nesbitt. Dudney also alleges that Nesbitt had a meeting with Governor Deal’s chief of staff on August 30, 2011, that Nesbitt met with him the following day and informed him that there was an allegation of misconduct on Dudney’s part that had previously been reported by Major General Britt, that on September 4, 2011, the Governor’s office announced the simultaneous and previously unscheduled retirements of Nesbitt and Britt, that Dudney was terminated by Nesbitt on September 8, 2011 for alleged “Force Management” reasons, that in his position as a joint staff director he would have been aware of any reduction of officer positions, and that he was aware of no scheduled reductions at the time of his termination. Dudney asserts that he was terminated in retaliation for his report to the Department of the Army Inspector General on August 31, 2011.

Less than two months after Dudney filed his complaint, the defendants moved to dismiss based upon the intr a-military doctrine and their contention that Dudney did not fall within the definition of a “public employee” protected by the whistleblower statute. Following a hearing, the trial court entered an order granting the motion on both grounds.

1. In Feres v. United States, 340 U. S. 135 (71 SCt 153, 95 LE 152) (1950), the United States Supreme Court concluded that the federal government cannot be held liable under the Federal Tort Claims Act to members of the armed forces for injuries that “arise.out of or are in the course of activity incident to service.” 340 U. S. at 146. “Since Feres, the courts have expanded the doctrine so that it now generally protects the government from suit for injuries arising from ‘activities incident to military service.’ ” (Citation, punctuation and footnotes omitted.) Overton v. New York State Div. of Military and Naval Affairs, 373 F3d 83, 89 (II) (A) (2nd Cir. 2004). One of three rationales for the Supreme Court’s decision in Feres was that “suits by a service member against the government would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” (Citations and punctuation omitted.) Jones v. Littlejohn, 222 Ga. App. 494, 496 (2) (474 SE2d 714) (1996).

The doctrine of intra-military immunity is an outgrowth of the third Feres rationale that decries the propriety of civilian courts delving into military matters and calling to bar military decisions and institutions. Thus, our evolving jurisprudence has created a zone of protection for military actors, immunizing actions and decisions which involved military authority from scrutiny by civilian courts.

(Citations and punctuation omitted.) Id. Finally, “[t]he doctrine applies not only to legal actions brought by members of the regular military, but also to those brought by members of the National Guard.” Overton, supra, 373 F3d at 89, n. 7. See also Ga. Dept. of Defense v. Johnson, 262 Ga. App. 475, 479 (1) (585 SE2d 907) (2003) (Georgia National Guard is military in character).

The Second Circuit Court of Appeals has recognized that the “incident to military service” test may preclude a claim “even though its pursuit, under the particular circumstances of the case, might not weaken military discipline or interfere with discretion as to military matters.” (Citation and punctuation omitted.) Overton, supra, 373 F3d at 91 (II) (A). As explained by the Supreme Court in United States v. Stanley, 483 U. S. 669, 682-683 (II) (107 SCt 3054, 97 LE2d 550) (1987),

[a] test for liability that depends on the extent to which particular suits would call into question military discipline and decisionmaking would itself require judicial inquiry into, and hence intrusion upon, military matters. Whether a case implicates those concerns would often be problematic, raising the prospect of compelled depositions and trial testimony by military officers concerning the details of their military commands. Even putting aside the risk of erroneous judicial conclusions (which would becloud military decision-making), the mere process of arriving at correct conclusions would disrupt the military regime. The “incident to service” test, by contrast, provides a line that is relatively clear and that can be discerned with less extensive inquiry into military matters.

Decided June 27, 2013.

Shewmaker & Shewmaker, Steven P. Shewmaker, Drew N. Early, for appellant.

Samuel S. Olens, Attorney General, Bryan K. Webb, Senior Assistant Attorney General, Annette M. Cowart, Assistant Attorney General, for appellees.

Id.

In this case, there can be no doubt that the injuries alleged in Dudney’s complaint arise out of activities “incident to military service” — he claims to have been injured by the termination of his military service. See Luckett v. Bure, 290 F3d 493, 499 (2nd Cir. 2002); Speigner v. Alexander, 248 F3d 1292, 1298 (11th Cir. 2001); Smith v. Smith, 1997 U. S. Dist. LEXIS 23924 at *28-29 (M.D. Ala. 1997). We are therefore constrained to affirm the trial court’s order dismissing Dudney’s complaint based upon the broad sweep of the intra-military doctrine.

2. Dudney’s remaining enumeration of error is rendered moot by our holding in Division 1.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       We find no merit in Dudney’s claim that this Court should apply the four-part test established in Mindes v. Seaman, 453 F2d 197, 201-202 (5th Cir. 1971), to determine whether his claim should be barred by the doctrine of intra-military immunity. As the Eleventh Circuit Court of Appeals noted in Speigner, supra, courts no longer apply the Mindes test as a result of the United States Supreme Court’s subsequent decision in Stanley, supra, 483 U. S. at 683, applying the broader “incident to military service” test. Speigner, supra, 248 F3d at 1295, n. 5.


text:
    A13A0629.
    FRASARD v. THE STATE.
    (745 SE2d 716)
   Branch, Judge.

On appeal from his conviction for speeding, Michael Frasard argues pro se and in 11 enumerations of error that the evidence was insufficient, that the State failed to show compliance with statutes mandating notice to motorists of speed limits and the use of speed detection devices, that the device used to detect Frasard’s speed was not properly authorized for use by the arresting officer, and that the speeding citation itself was invalid. Although these assertions lack merit, we vacate Frasard’s conviction and remand for resentencing because the trial court should have merged the two counts on which he was found guilty.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on the morning of April 4, 2012, a DeKalb County police officer was conducting traffic enforcement on Peachtree Road just over the DeKalb County line. The officer saw a green Lincoln Continental traveling northbound at what appeared to be a “high rate of speed.” On the basis of his training, the officer estimated that the car was traveling in excess of the posted speed limit of 35 mph. The officer then trained a laser device on the Lincoln and obtained a reading that the car was traveling at 54 mph. Frasard was issued a citation and then indicted on two counts of speeding — the first for traveling 54 mph in a 35-mph zone, and the second for traveling “in excess of the posted speed limit.” A jury found Frasard guilty on both counts, and the trial court sentenced him to 12 months probation and a $500 fine plus costs.

1. In five enumerations of error, Frasard argues that the evidence concerning his rate of speed and the venue of the incident was insufficient to sustain his conviction. We disagree.

(a) The State need not prove that a driver “was traveling at [a] precise rate of speed in order to obtain a conviction” for speeding. In the Interest of J. D. S., 273 Ga. App. 576, 577 (615 SE2d 627) (2005), citing Jones v. State, 258 Ga. App. 337, 338 (574 SE2d 398) (2002). “ ‘[T]o be guilty of speeding, one need only exceed the designated speed limit. Greater speeds by specified increment affect only the punishment and are therefore not material allegations to prove the crime of speeding.’ ” In the Interest of J. D. S., supra, quoting Jones, supra. Because “ ‘[a]n officer’s estimate of speed is sufficient to support a conviction on a speeding violation,’ ” the officer’s testimony that Frasard was traveling above the speed limit was sufficient to sustain his conviction. Id., quoting In the Interest of B. D. S., 269 Ga. App. 89, 91 (1) (603 SE2d 488) (2004); see also OCGA §§ 40-6-181 (defining offense of driving a vehicle “in excess of . . . maximum limits”), 40-6-182, 40-6-183 (setting out exceptions thereto).

(b) Although Frasard argues that the State failed to prove that he was speeding in DeKalb County, both the citation and the officer’s testimony as to the location of his enforcement action placed the incident within the boundaries of that county. Frasard himself testified, moreover, that he drove over the county line before he saw the car of the officer who pulled him over. This evidence was sufficient to establish venue in DeKalb County. Brewster v. State, 300 Ga. App. 143, 145 (684 SE2d 309) (2009) (officer’s testimony was sufficient to prove venue of speeding incident in a particular county).

2. Frasard argues that his conviction must be overturned because the State failed to prove the existence of signs at the county line indicating that (a) the speed limit was 35 mph and (b) speed detection devices were in use. We disagree.

(a) OCGA § 40-6-181 (b) (1) provides that the maximum speed in an “urban or residential district” is 30 mph. State and county authorities have the power to vary maximum speeds, with certain limits, “on the basis of an engineering and traffic investigation.” See OCGA §§ 40-6-182, 40-6-183 (a); Dept. of Transp. v. Watts, 260 Ga. App. 905, 907 (581 SE2d 410) (2003) (governmental actions under OCGA §§ 40-6-181 and 40-6-182 “are analogous to the legislative act of making law”).

The arresting officer’s testimony established that the speed limit in effect at the scene was 35 mph, or greater than the statutory maximum of 30 mph. Frasard has cited no authority, and we have found none, that requires a governmental unit to prove its compliance with OCGA § 40-6-182 or§40-6-183 in order to obtain a conviction for the crime of speeding. See Brooker v. State, 206 Ga. App. 563, 565 (426 SE2d 39) (1992) (noting the presumption that a public officer has done his duty in all cases involving the traffic statutes). Given that the variance from the statutory speed limit of 30 mph to the non-statutory limit of 35 mph could only work in Frasard’s favor, moreover, Frasard cannot show that he was prejudiced by the State’s imposition of a higher, nonstatutory speed limit in this case.

(b) OCGA § 40-14-6 (a) provides:

Each county, municipality, college, and university using speed detection devices shall erect signs on every highway which comprises a part of the state highway system at that point on the highway which intersects the corporate limits of the municipality, the county boundary, or the boundary of the college or university campus. Such signs shall be at least 24 by 30 inches in area and shall warn approaching motorists that speed detection devices are being employed. No such devices shall be used within 500 feet of any such warning sign erected pursuant to this subsection.

As this Court has repeatedly held, incomplete compliance with this statute does not mandate that evidence obtained by the speed detection device be excluded. Ferguson v. State, 263 Ga. App. 40, 41 (3) (587 SE2d 195) (2003); Royston v. State, 166 Ga. App. 386 (304 SE2d 732) (1983); Ferguson v. State, 163 Ga. App. 171, 172 (1) (292 SE2d 87) (1982). The arresting officer testified that he had verified the existence and extent of a 35 mph speed limit zone at the county line by riding his motorcycle on both sides of that line and physically verifying the posted speed limits in the area. This testimony as to Frasard’s speeding was admissible, and the conviction obtained on the basis of that testimony lawful. Id.

3. In four enumerations of error, Frasard argues that the State failed (a) to show compliance with OCGA § 40-14-7, which mandates that no stationary speed detection device shall be used if not visible to a driver “for a distance of at least 500 feet”; (b) to show compliance with applicable federal and state standards for laser devices as required by OCGA § 40-14-4; and (c) to produce a certified copy of the Department of Public Safety’s list of approved laser devices including that used to detect his speed. We disagree.

(a) Frasard argues that the evidence was insufficient as to the State’s compliance with OCGA § 40-14-7, which bars the use of any speed detection device “not visible for a distance of at least 500 feet” from the motorist. Although Frasard testified at trial that the arresting officer was close enough that Frasard could see him looking into his speed detection device as Frasard’s vehicle came into view, the arresting officer testified that he was at a distance of between 844 and 950 feet from Frasard’s vehicle when the device showed that Frasard was speeding. It was for the jury to resolve contradictions between this and any other evidence as to the distance at which the speed detection device was used.

(b) Under OCGA § 40-14-4, a State agency is authorized to use speed detection devices only if “the agency possesses a license in compliance with Federal Communications Commission rules,” and if “each device, before being placed in service and annually after being placed in service, is certified for compliance by a technician possessing a certification as required by the Department of Public Safety” When the arresting officer testified that the device he was using was certified by the Department of Public Safety, Frasard did not object. The State also introduced the officer’s log showing his daily tests of the device. The officer testified that the County had received a permit from the State authorizing the use of speed detection devices on certain roads.

As an initial matter, this record shows that while Frasard did object to the relevancy of the officer’s log, he did not object to the officer’s testimony on the ground that the County had failed to show continued compliance with FCC rules, with the result that he has waived this issue on appeal. See Keller v. State, 271 Ga. App. 79, 82 (5) (608 SE2d 697) (2004) (when defendant made only a general objection as to lack of foundation concerning results of speed control device, he had waived any argument as to the evidence on appeal). When a speed detection device is operated by a county officer, moreover, we presume that the permit issued by the Department of Public Safety complied with OCGA § 40-14-4 such that an actual FCC license does not need to be produced to show a county officer’s compliance with the Georgia statute. Brooker, supra at 564.

Nothing in [our case law] suggests that compliance with the certification requirements of OCGA § 40-14-4 cannot be proved by reliance upon the evidentiary presumption that a public officer has done his duty, and his official duties will be presumed to have been done rightly until the contrary is shown.

(Citation and punctuation omitted.) Id. at 565. Given the record before us, including the officer’s testimony as to his and the County’s authority to use a properly functioning laser device, Frasard has failed to overcome “a presumption in this and in all other cases arising under [the traffic statutes] that the appropriate public official has caused the instrument used to detect speed by [laser device] to be checked for calibration.” (Citation and punctuation omitted.) Id., citing Calloway v. State, 191 Ga. App. 383, 384 (1) (381 SE2d 598) (1989).

(c) OCGA § 40-14-17 provides:

Evidence of speed based on a speed detection device using the speed timing principle of laser which is of a model that has been approved by the Department of Public Safety shall be considered scientifically acceptable and reliable as a speed detection device and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state. A certified copy of the Department of Public Safety list of approved models of such laser devices shall be self-authenticating and shall be admissible for all purposes in any court, judicial, or administrative proceedings in this state.

(Emphasis supplied.)

By its plain terms, the statute authorizes a court to consider “evidence of speed” obtained by means of a model “approved by the Department of Public Safety” as “scientifically acceptable and reliable,” and provides that a certified copy of the Department’s “list of approved models . . . shall be self-authenticating” for adjudicatory purposes. The same statute does not provide, however, that only such a document can supply evidence that the device was so approved. On the contrary, as we have held in the closely related context of breath test devices, “circumstantial evidence arising from the testimony of the trained and certified individual who operated the machine and performed the test” is sufficient to meet the statute’s authenticating procedures. (Citation and punctuation omitted.) Gidey v. State, 228 Ga. App. 250, 252 (1) (491 SE2d 406) (1997). Here, the arresting officer testified as to both his training in speed detection, including the use of laser devices, and the Department of Public Safety’s approval of the particular device he used. Accordingly, the State introduced evidence sufficient to meet the authenticating procedures of OCGA § 40-14-17, and Frasard’s contentions to the contrary lack merit.

4. Frasard also argues that because the speeding citation failed to specify whether the incident occurred on a two-lane road, the citation was void. See OCGA § 40-6-187 (a) (citation “shall specify the speed at which the defendant is alleged to have driven, the maximum speed applicable . . . , and whether the violation occurred on a two-lane road or highway”). We disagree.

First, Frasard did not file any motion or demurrer attacking the citation or the indictment on this ground before trial. See OCGA § 17-7-110 (“All pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”); Bryson v. State, 282 Ga. App. 36, 40-41 (2) (638 SE2d 181) (2006) (defendant waived the right to challenge the form of an indictment when he failed to move to quash it before entering a not guilty plea). In Byars v. State, 92 Ga. App. 511 (88 SE2d 818) (1955), moreover, the single reported case construing OCGA § 40-6-187 or its predecessor, we held that even if the statute directed the State to specify details including a defendant’s speed, an indictment provided sufficiently specific notice when it alleged that he was traveling “in excess of” a certain speed. Id. at 512 (1). This citation indicated that Frasard was speeding on Peachtree Road. When the officer left the box indicating “2-lane road” blank, he was complying with OCGA § 40-6-187 by showing that the road consisted of more than two lanes at the location at issue. Thus the citation was not defective, and the indictment based on it was sufficiently specific to put Frasard on notice of the charges against him. See id. (indictment failing to specify defendant’s exact speed was “amply sufficient” to withstand demurrer).

5. We are required to consider whether counts merge for sentencing purposes “even though [Frasard] failed to raise the claim in the trial court, or to challenge the sentence ... on appeal.” (Citation omitted.) Mikell v. State, 286 Ga. 722, 725 (3) (690 SE2d 858) (2010).

Since one may not be convicted legally of a crime which is included as a matter of law or fact in another crime for which the defendant stands convicted, the conviction and sentence for the included crime must be vacated by the appellate court, even if not enumerated as error.

(Citations omitted.) Curtis v. State, 275 Ga. 576, 577 (1) (571 SE2d 376) (2002), overruled in part on other grounds, Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010); see also Washington v. State, 310 Ga. App. 775, 781-782 (7) (714 SE2d 364) (2011).

As we have suggested above, either the arresting officer’s testimony as to his initial observation of Frasard’s excessive speed or the results of the laser detection device used immediately after that initial observation would have been sufficient to sustain his conviction for speeding. In the Interest of J. D. S., supra; In the Interest of B. D. S., supra. But these two sources of evidence cannot sustain a conviction on two separate counts of speeding because there is no evidence in the text of OCGA § 40-6-181 that the legislature intended multiple punishments for “a single course of conduct” spanning less than a minute. “Without evidence of a legislative intent to allow multiple punishments for the same course of conduct, . . . acts that constitute a continuing criminal course of conduct are not punishable separately.” (Citation omitted.) Withrow v. State, 275 Ga. App. 110, 114 (4) (619 SE2d 714) (2005), citing State v. Marlowe, 277 Ga. 383, 384-386 (1), (2) (589 SE2d 69) (2003), and Brown v. Ohio, 432 U. S. 161, 169-170 (III) (97 SCt 2221, 53 LE2d 187) (1977). The trial court therefore erred when it failed to merge the two speeding counts for sentencing purposes. See Withrow, supra (vacating and remanding for resentencing when trial court failed to merge three counts of cruelty to children occurring over three days into a single count); Travis v. State, 314 Ga. App. 280, 288-289 (7) (724 SE2d 15) (2012) (vacating conviction for reckless driving and speeding and remanding for resentencing on reckless driving count alone when the only evidence to support it was the speeding violation). We therefore vacate the trial court’s judgment of conviction and remand for further proceedings, including a resentencing hearing, consistent with this opinion.

Judgment vacated and case remanded for resentencing.

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

Decided June 27, 2013.

Michael C. Frasard, pro se.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor - General, for appellee.

       See OCGA § 40-6-392 (a) (1) (A) (validating breath tests “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order”); 40-6-392 (f) (a properly prepared and executed inspection certificate for the breath-testing machine is admissible to show that the device is in “good working order”).

       The statute provides:
      (a) The limits specified in this Code section or established as authorized in this article shall be the maximum lawful vehicle speeds, except when a special hazard exists that requires a lower speed for compliance with Code Section 40-6-180.
      (b) Consistent with the provision of engineering and traffic investigations regarding maximum speed limits as provided in Code Section 40-6-182, no person shall drive a vehicle at a speed in excess of the following maximum limits:
      (1) Thirty miles per hour in any urban or residential district;
      (1.1) Thirty-five miles per hour on an unpaved county road unless designated otherwise by appropriate signs;
      (2) Seventy miles per hour on a highway on the federal interstate system and on physically divided highways with full control of access which are outside of an urbanized area of 50,000 population or more, provided that such speed limit is designated by appropriate signs;
      (3) Sixty-five miles per hour on a highway on the federal interstate system which is inside of an urbanized area of 50,000 population or more, provided that such speed limit is designated by appropriate signs;
      (4) Sixty-five miles per hour on those sections of physically divided highways without full access control on the state highway system, provided that such speed limit is designated by appropriate signs; and
      (5) Fifty-five miles per hour in other locations.
      (c) The maximum speed limits set forth in this Code section may be altered as authorized in Code Sections 40-6-182, 40-6-183, and 40-6-188.