author: DOYLE, Presiding Judge.

text:
    A11A1909.
    MINOR v. THE STATE.
    (723 SE2d 702)
   DOYLE, Presiding Judge.

Barrett Lee Minor was convicted of possession of cocaine. He appeals the denial of his motion for new trial, arguing that the trial court erred by admitting his statement to police and that his trial counsel was ineffective. We affirm, for the reasons that follow.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

So viewed, the record shows that Sergeant Chris Bender of the Douglasville Police Department was conducting a patrol of an area known for narcotics and drug-related activity when he observed Minor walking down the street. Upon seeing the officer, Minor, who had his left hand clenched into a fist, looked over his shoulder several times and increased his pace. Suspecting that Minor might have crack cocaine in his left hand, Bender, while still in his patrol car, asked Minor what he was holding.

Minor switched the contents of his left hand to his right, and then opened his left hand and displayed it to Bender. Bender then exited his vehicle, approached Minor, and asked him what he was holding in his right hand. Minor opened his hand and showed the officer a small “jeweler” bag commonly used to package crack cocaine, which bag contained several white rocks that Bender believed to be crack cocaine. Bender then handcuffed Minor, who denied that the items were crack cocaine.

Bender, concerned for his personal safety, then asked Minor whether he had “anything else on his person, any drug[-]related objects, anything that was sharp that was going to poke, prick, stick [the officer], [or] any weapons.” Minor replied that he had a crack pipe, nodding toward his right coat pocket, and Bender retrieved the pipe, which had a metal stem and white residue in the end. Minor then reiterated that the rocks in the bag were not cocaine, but stated that the crack pipe was his. After cuffing Minor and finding the crack pipe, Bender closely examined the contents of the bag and noticed that “the rocks were very, very hard. Usually crack cocaine[,] if you pinch it through the bag, it’s a little softer and might break[,] and [he] noticed them not breaking. So it appeared to be something of a hard substance, maybe a rock.”

Bender transported Minor to the police department for booking, and Minor continued to deny that the rocks were cocaine, but admitted that he had the crack pipe. Subsequent laboratory testing indicated that the crack pipe taken from Minor contained cocaine residue.

Minor was charged with possessing the cocaine contained in the crack pipe. He filed a motion to suppress, and the trial court held a Jackson-Denno hearing immediately before trial, at which hearing trial counsel argued that Minor’s statements to Bender should have been suppressed. The trial court ruled that the statements were admissible, concluding that the crack pipe would have been discovered inevitably and that Minor’s statements to the officer were voluntary. The case proceeded to trial, and the jury found Minor guilty of possession of cocaine. This appeal follows the trial court’s denial of Minor’s subsequent motion for new trial.

On appeal, Minor argues that (1) the trial court erred by denying his motion to suppress his statement to Bender that he had a crack pipe in his pocket; and (2) trial counsel was ineffective by failing to move to suppress the crack pipe found in his pocket and his subsequent statements to Bender admitting possession of the pipe. These issues are intertwined, so we will address them together.

1. To review the trial court’s ruling on the motion to suppress, we must evaluate the officer’s encounter with Minor and his subsequent search of Minor’s pocket.

There are three tiers of police-citizen encounters: consensual encounters; brief investigative stops requiring reasonable suspicion; and arrests that must be supported by probable cause. In a first-tier encounter, “police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.”

Here, Bender approached Minor and asked him what he was holding; the officer did not direct Minor to open his hands, but instead merely questioned him. Minor was free to disregard the officer’s questions and walk away, and Minor has pointed to no evidence of coercion. We conclude, therefore, that this initial interaction between Bender and Minor was a first-tier consensual encounter.

After Minor opened his hand and displayed the bag containing several small rocks, the officer had probable cause to believe Minor possessed drugs because he reasonably believed them to be cocaine; accordingly, Bender was authorized to arrest Minor and place him in handcuffs. Sergeant Bender’s

subsequent search of [Minor] was lawful as incident to his arrest. When a lawful arrest is effected[,] a peace officer may reasonably search the person arrested and the area within the person’s immediate presence for the purpose of discovering or seizing the fruits of the crime for which the person has been arrested.

Minor contends that his statement to Bender that he had a crack pipe in his pocket should be suppressed because he had not been Mirandized at the time the officer asked him whether he had any weapons or sharp, drug-related paraphernalia that could injure the officer. The State argues that Bender’s questions regarding weapons did not constitute an interrogation regarding Miranda warnings. Even assuming, however, that Minor’s admission that he had a crack pipe was the result of a custodial interrogation requiring a Miranda warning, the State is also correct that the pipe would have been discovered inevitably during the officer’s search pursuant to Minor’s lawful arrest. Similarly, even if Minor’s subsequent statements about the pipe following seizure of the item were improperly admitted, given the overwhelming evidence of Minor’s guilt (based on the officer’s proper discovery of the pipe in Minor’s pocket), the admission was harmless.

2. Minor argues that trial counsel was ineffective for failing to move to suppress the crack pipe found in his pocket and his subsequent statements to Bender regarding the pipe.

To establish ineffective assistance of counsel under Strickland v. Washington, [Minor] must prove (1) that his trial counsel’s performance was deficient, and (2) that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result would have been different but for the deficiency. . . . The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous. Additionally, a court is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one.

As concluded in Division 1, neither admission of the crack pipe found in Minor’s pocket nor Minor’s subsequent statement to police about the pipe requires reversal. Thus, Minor’s ineffective assistance of counsel arguments regarding trial counsel’s failure to make a motion to suppress the evidence and statements are without merit because the failure to file a meritless motion does not amount to ineffective assistance.

Judgment affirmed.

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

Decided February 21, 2012.

M. Paul Reynolds, for appellant.

David McDade, District Attorney, James A. Dooley, Steven C. Knittel, Assistant District Attorneys, for appellee.

       OCGA § 16-13-30 (a).

       (Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       Sergeant Bender testified that he was concerned because hypodermic needles and metal and/or glass crack pipes may pose dangers.

       The officer did not advise Minor of his Miranda rights before seizing the crack pipe or before Minor made his statements regarding the pipe.

       The rocks found in the bag were not tested, and instead were placed in an evidence bag and labeled as “fake cocaine rocks.”

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       See Buchanan v. State, 259 Ga. App. 272, 274 (576 SE2d 556) (2003). See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       (Punctuation omitted.) Gelestin v. State, 255 Ga. App. 792, 793 (567 SE2d 82) (2002).

       See White v. State, 267 Ga. App. 200, 202 (2) (598 SE2d 904) (2004); State v. Davis, 206 Ga. App. 238, 239 (424 SE2d 878) (1992).

        See Zeeman v. State, 249 Ga. App. 625, 628 (2) (549 SE2d 442) (2001); Samuel v. State, 198 Ga. App. 558, 560 (3) (402 SE2d 325) (1991). Minor argues that Bender did not have probable cause because after effectuating the arrest, the officer subsequently inspected the rocks and determined that they were not likely to be crack cocaine. We find this argument unpersuasive.

       (Punctuation omitted.) Bond v. State, 271 Ga. App. 849, 853 (2) (610 SE2d 609) (2005).

       See Smith v. State, 264 Ga. 857, 859 (3) (452 SE2d 494) (1995).

       See McGhee v. State, 303 Ga. App. 297, 300, n. 14 (692 SE2d 864) (2010).

       See Baez v. State, 297 Ga. App. 893, 895 (1) (678 SE2d 583) (2009).

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       (Citations and punctuation omitted.) Jackson v. State, 284 Ga. App. 619, 627-628 (11) (644 SE2d 491) (2007).

        See Rector v. State, 285 Ga. 714, 717 (6) (681 SE2d 157) (2009); Cuvas v. State, 306 Ga. App. 679, 681 (1) (b) (703 SE2d 116) (2010) (“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.”) (citation and punctuation omitted).


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A11A2053.
    JENKINS v. WACHOVIA BANK, N.A. et al.
    (724 SE2d 1)
   McFADDEN, Judge.

Stephen Kale Jenkins brought a tort action against Wachovia Bank, N.A., Wells Fargo Bank, N.A., and all predecessor and successor entities and John Doe corporations (collectively, the “Bank”), in which he alleged that a Bank teller had improperly accessed Jenkins’s confidential information and given it to her husband, allowing the husband to steal Jenkins’s identity. Pertinent to this appeal, Jenkins asserted claims that the Bank negligently failed to protect the information, breached a duty of confidentiality, and invaded his privacy. The trial court granted the Bank’s motion for judgment on the pleadings. Because the well-pleaded allegations of Jenkins’s complaint, taken as true, establish the elements of his negligence claim, we reverse the judgment on the pleadings as to that claim. Because Jenkins fails to assert in his complaint facts showing that the Bank owed him a confidential duty or invaded his privacy, we affirm the judgment on the pleadings as to the remaining claims.

A motion for judgment on the pleadings should be granted only if the moving party is clearly entitled to judgment. Sherman v. Fulton County Bd. of Assessors, 288 Ga. 88, 90 (701 SE2d 472) (2010). “[A]ll well-pleaded material allegations of the opposing party’s pleading are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Citation and punctuation omitted.) Id. We review the trial court’s ruling on a motion for judgment on the pleadings de novo. McCobb v. Clayton County, 309 Ga. App. 217 (710 SE2d 207) (2011).

Construed in favor of Jenkins, the complaint contained the following allegations. Jenkins was a former customer of a financial institution acquired by the Bank, and the Bank maintained records containing his confidential information. The Bank “falsely represented to its customers and members of the general public that it created and implemented a system to adequately protect the private and personal identifying information entrusted to it by its customers and by customers of acquired financial institutions.” A Bank teller “who had no need, business or otherwise[,] to any of [Jenkins’s information], was nevertheless granted access to [that] information” by the Bank. The teller gave the information to her husband, whose last name also was “Jenkins” and who used the information to steal Jenkins’s identity. This damaged his credit, hindered his efforts to obtain loans, required him to spend “enormous amounts of time and energy trying to correct false credit reports,” and caused him emotional injury.

In granting judgment on the pleadings to the Bank, the trial court concluded that

the acts or alleged failure to act on behalf of [the Bank] do not state a cause of action under the laws of the State of Georgia. [The Bank] simply maintained a database containing the personal financial information of former and current customers. [The Bank] did not publish [Jenkins’s] private information. A [Bank] employee accessed the database and obtained the confidential information and illegally provided it to her husband.

1. Negligence. “In order to have a viable negligence action, a plaintiff must satisfy the elements of the tort, namely, the existence of a duty on the part of the defendant, a breach of that duty, causation of the alleged injury, and damages resulting from the alleged breach of the duty.” (Citation omitted.) Rasnick v. Krishna Hospitality, 289 Ga. 565, 566 (713 SE2d 835) (2011). Jenkins argues that the facts alleged in his complaint demonstrate all of these elements, while the Bank contends that as a matter of law Jenkins cannot show that the Bank owed him a duty, that it breached that duty, or that any such breach caused the theft of his identity. As detailed below, we agree with Jenkins that the allegations of his complaint, taken as true, present a negligence claim, and that the trial court thus erred in granting judgment on the pleadings to the Bank as to this claim.

(a) Existence of a duty. In a negligence action,

[t]he legal duty is the obligation to conform to a standard of conduct under the law for the protection of others against unreasonable risks of harm. . . . The duty can arise either from a valid legislative enactment, that is, by statute, or be imposed by a common law principle recognized in the case law.

(Citations omitted.) Rasnick, 289 Ga. at 566-567. As explained below, we agree with Jenkins that the Gramm-Leach-Bliley Act (“GLBA”), 15 USC § 6801 et seq., imposed a legal duty upon the Bank to protect Jenkins’s confidential personal information.

The GLBA provides in pertinent part that “[i]t is the policy of the Congress that each financial institution has an affirmative and continuing obligation ... to protect the security and confidentiality of [its] customers’ nonpublic personal information.” 15 USC § 6801 (a). Although the GLBA does not create a private right of action for a violation of its terms, Finnerty v. State Bank & Trust Co., 301 Ga. App. 569, 570 (2) (687 SE2d 842) (2009), its plain language states that financial institutions have a duty to protect certain information of their customers. And OCGA § 51-1-6 authorizes a plaintiff to recover damages for the breach of a legal duty even when that duty arises from a statute that does not provide a private cause of action. See Landis v. Rockdale County, 206 Ga. App. 876, 879 (2) (427 SE2d 286) (1992) (OCGA § 51-1-6 does not create a legal duty but defines a tort and authorizes damages when a legal duty is breached). OCGA § 51-1-6 states, “[w]hen the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.” A duty imposed by a federal statute such as the GLBA is a duty imposed by law under OCGA § 51-1-6. See Dupree v. Keller Indus., 199 Ga. App. 138, 141 (1) (404 SE2d 291) (1991) (federal OSHA regulations are admissible as evidence of a legal duty, the violation of which may give a cause of action under OCGA § 51-1-6). Cf. McLain v. Mariner Health Care, 279 Ga. App. 410, 413 (2) (631 SE2d 435) (2006) (allegations of violation of federal statutes and regulations support claim of breach of legal duty in both traditional negligence action and action for negligence per se); Mauldin v. Sheffer, 113 Ga. App. 874, 880 (150 SE2d 150) (1966) (duty imposed by law includes duty imposed by valid statutory enactment of the legislature).

The Bank cites Winter Park Condo. Ltd. Partnership v. Wachovia Bank, N.A., 2009 WL 290992 (M.D. Fla. 2009), for the proposition that the GLBA does not impose upon it a duty to protect its customers’ information. But the court in that case stated otherwise:

Winter Park Condominium . . . asserts that the [GLBA] imposes additional duties upon banks, such as Wachovia, to safeguard their customers’ confidential financial information. While this is true as far as it goes, it is not enough [to support Winter Park’s claim of breach of fiduciary duty], as it does not suggest that the possession of a customer’s confidential information by a bank, standing alone, is enough to establish a fiduciary relationship between the bank and the customer.

(Emphasis supplied.) Id. Thus, Winter Park Condo. Ltd. Partnership concerns a claim of breach of fiduciary duty based on the existence of a fiduciary relationship, not a claim of negligence based upon a duty of care imposed by the GLBA. And we are not persuaded by the Bank’s cite to a federal magistrate court’s report and recommendation, concurred in by the district court in Daniels v. Experian Information Solutions, 2009 WL 1811548 (S.D. Ga. 2009). In concluding that no private right of action existed for alleged violations of the GLBA, the magistrate court relied upon the analysis in Winter Park Condo. Ltd. Partnership, which, as discussed above, did not concern the type of claim presented in this case. Daniels, supra. Moreover, the magistrate court did not address the application of OCGA § 51-1-6. Daniels, supra.

(b) Breach. The Bank argues that allowing a teller access to confidential customer information alone cannot demonstrate a breach of its duty to protect that information under the GLBA, emphasizing that tellers need access to customer information to perform their jobs. We must take as true, however, Jenkins’s allegation that the teller in this case had no need for his information and that her access to it was unnecessary. We also must take as true Jenkins’s allegations that the Bank failed to implement and follow security procedures regarding customer information, failed to protect that information’s confidentiality, failed to guard against its misuse, and failed to detect, report and stop its employee’s suspicious activities regarding customer information. The question is not whether allowing a teller access to customer information alone can demonstrate a breach of the duty to protect that information, but whether allowing a teller unnecessary access to the information, combined with the other alleged failures of the Bank, can demonstrate a breach of the duty to protect that information. The facts alleged by Jenkins were sufficient to support a claim that the Bank breached its duty under theories of both negligence and negligence per se. See generally Groover v. Johnston, 277 Ga. App. 12, 13 (1) (625 SE2d 406) (2005) (discussing elements of negligence per se).

(c) Causation. Jenkins contends that the Bank’s breach of its duty to protect his information proximately caused the theft of his identity, because the teller who improperly obtained the information gave it to her husband, the identity thief. The Bank responds that the acts of its employee and her husband broke the causal chain and precluded its liability as a matter of law.

[Generally, an independent, intervening criminal act of a third party, without which the injury would not have occurred, will be treated as the proximate cause of the injury superseding any negligence of the defendant unless the intervening criminal act is a reasonably foreseeable consequence of the defendant’s negligent act.

(Citations and punctuation omitted; emphasis supplied.) Tucker Fed. Sav. & Loan Assn. v. Balogh, 228 Ga. App. 482, 484 (491 SE2d 915) (1997). But we cannot conclude that as a matter of law the intervening criminal act in this case — the wrongful appropriation and use of Jenkins’s information by an identity thief — was an unforeseeable consequence of the Bank’s alleged breach of its duty to protect that information. See Wachovia Bank of Ga. v. Reynolds, 244 Ga. App. 1, 4 (1) (b) (533 SE2d 743) (2000) (where certificate of deposit account with bank was established by power of attorney with special instructions indicating potential incapacity of depositor, a third party’s theft of depositor’s money after he withdrew it without assistance was not unforeseeable as a matter of law; thus, court did not err in denying motion for directed verdict on claim that bank breached a duty by allowing depositor to withdraw the money unassisted). Compare Tucker Fed. Sav. & Loan Assn., 228 Ga. App. at 484 (bank robber’s act of shooting bystander in parking lot of neighboring store after dye pack hidden among stolen money exploded during robber’s attempted getaway was an intervening proximate cause of bystander’s death; thus, as a matter of law, victim’s death was not proximately caused by bank teller’s act of including dye pack with money during robbery).

2. Breach of a Duty of Confidentiality. Jenkins alleged a separate claim that the Bank “breached [its] implied duty to [him] to keep and maintain his credit and identity information in confidence.” He argues that he had a confidential relationship with the Bank by virtue of the GLBA. We disagree.

OCGA § 23-2-58 provides that

[a]ny relationship shall be deemed confidential, whether arising from nature, created by law, or resulting from contracts, where one party is so situated as to exercise a controlling influence over the will, conduct, and interest of another or where, from a similar relationship of mutual confidence, the law requires the utmost good faith, such as the relationship between partners, principal and agent, etc.

“Generally, there is no confidential relationship between a bank and its customers,” Savu v. SunTrust Bank, 293 Ga. App. 683, 691 (3) (668 SE2d 276) (2008), and we disagree with Jenkins’s contention that the GLBA created such a confidential relationship as a matter of law. The language of the GLBA does not require such an interpretation, see Winter Park Condo. Ltd. Partnership, and such an interpretation would effectively do away with Georgia’s general rule that the bank-customer relationship is not confidential. Moreover, Jenkins has not pled any special circumstances showing that he had a particular relationship of trust or mutual confidence with the Bank in this case. Cf. Morrell v. Wellstar Health System, 280 Ga. App. 1, 7-8 (5) (633 SE2d 68) (2006) (dismissal of patients’ claim against hospital was proper, where nonprofit hospitals generally have no fiduciary duty to patients with respect to prices charged for medical care, and the plaintiff patients did not claim that there were facts showing a particular relationship of trust or mutual confidence had been created between themselves and the hospital). We find no error in the court’s grant of judgment on the pleadings as to the claim for breach of a duty of confidentiality.

3. Invasion of Privacy.

Under Georgia case law, the concept of invasion of privacy encompasses four loosely related but distinct torts, as follows: (1) intrusion upon the plaintiffs seclusion or solitude, or into his private affairs; (2) public disclosure of embarrassing private facts about the plaintiff; (3) publicity which places the plaintiff in a false light in the public eye; and (4) appropriation for the defendant’s advantage of the plaintiffs name and likeness.

(Citation omitted.) Johnson v. Allen, 272 Ga. App. 861, 863-864 (1) (613 SE2d 657) (2005). Jenkins alleged that the Bank “allowed the intrusion into [his] private facts.” But he did not plead any facts demonstrating that the Bank unreasonably pried or intruded into his private concerns, as required for a claim of invasion of privacy based upon intrusion. See Yarbray v. Southern Bell Tel. &c. Co., 261 Ga. 703, 705 (1) (409 SE2d 835) (1991). Jenkins also alleged that the Bank “allowed the public disclosure of private facts.” But he did not plead any facts demonstrating that the Bank distributed his information to the public at large, as required for a claim of invasion of privacy based on the public disclosure of private facts. See Finnerty, 301 Ga. App. at 571 (3). And Jenkins did not plead any facts demonstrating that the Bank’s employee, the teller, had committed any of these acts in the course of her employment, as required for the Bank to be liable under a theory of respondeat superior; to the contrary, he alleged that the teller’s actions had no connection with the performance of her job responsibilities. See Doe v. Village of St. Joseph, Inc., 202 Ga. App. 614, 616 (1) (415 SE2d 56) (1992) (summary judgment appropriate where undisputed facts showed that employee’s misconduct was personal in nature and unrelated to the performance of his employment duties). We find no error in the trial court’s grant of judgment on the pleadings to the Bank on the invasion of privacy claim.

Decided February 21, 2012

James W Kytle, for appellant.

Womble, Carlyle, Sandridge & Rice, Robert R. Ambler, Jr., John G. Perry, for appellee.

Judgment affirmed in part and reversed in part.

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


author: MlKELL, Presiding Judge.

text:
    A11A2237.
    TURNER v. THE STATE.
    (724 SE2d 6)
   MlKELL, Presiding Judge.

After a jury trial, Daniel Lee Turner was convicted of one count of aggravated sodomy, two counts of aggravated child molestation, and one count of child molestation against J. D., a minor child. Turner appeals from the judgment and conviction against him and from the denial of his motion for a new trial, arguing that the trial court erred in refusing to give a requested jury charge and that he received ineffective assistance of counsel.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.”

So viewed, the evidence shows that Turner is J. D.’s brother-in-law and cousin. When J. D. was between five and six years old, she and her mother often visited Turner and his wife; when she was seven years old, she and her mother moved into Turner’s home, and he and his wife became her care givers for about a year. During these time periods, Turner forced her to perform and receive oral sex, forced her to have anal intercourse, forced her to watch pornography, and fondled her buttocks.

1. In his first enumeration, Turner alleges that the trial court erred in refusing to give a jury charge he requested on the credibility of child witnesses. We disagree.

We review a trial court’s refusal to give a requested jury charge under an abuse of discretion standard. “A refusal to give a requested jury charge is not error unless the request is entirely correct and accurate; is adjusted to the pleadings, law, and evidence; and is not otherwise covered in the general charge.”

The requested charge provided:

In determining the reliability of the child witness, you may consider spontaneity and consistent repetition, use of terminology unexpected of a child of similar age, lack of motive to fabricate, evidence of prior interrogation, prompting, or manipulation by adults, you may consider whether the child has been interviewed in the intervening months, whether the interviews were made with the intention of helping the child prepare for court testimony. Where there is evidence of prior interrogation, spontaneity may be an inaccurate indicator of trustworthiness.

In the charge conference immediately preceding the court’s charge to jurors, the trial court declined to give the charge, saying:

[I]t’s internally inconsistent. . . because of the last sentence which . . . tells them, okay, one of the things you ought to consider is spontaneity. Then it turns around and says: where there is evidence of prior interrogations, spontaneity may be an inaccurate indicator of such worthiness. Well, is it an accurate indicator, or is it inaccurate[?]

The trial court’s instructions on witness credibility, among other things, contained the following language:

You may consider the demeanor of any witness. . . . You may consider the interest, or lack of interest, which a witness may have in the outcome of the case, and whether you think that witness’s testimony may have been influenced in some way because of that interest in the outcome of the case. You may consider the means and opportunity which any witness may have had for learning about or knowing the facts to which such witness testifies, and finally you may consider the nature of any of the facts testified to and the inherent probability or improbability of what any witness had to say based upon your own common sense and your own experience in human affairs.

Our Supreme Court has held, in the context of a trial court’s not giving a requested charge on the reliability of child witnesses, that “[i]t is not reversible error to fail to charge in the exact language requested when the charge given adequately covers the correct legal principles.” We find no abuse of discretion.

2. Turner asserts ineffective assistance of counsel, alleging that his trial lawyers were deficient in that they bolstered J. D.’s testimony and accusations by stipulating to the admissibility of the convictions of Larry Eugene Turner, Sr., who is J. D.’s father; and Lewis Edmund Turner, Jr., who is J. D.’s uncle and appellant’s father. Both Larry and Lewis Turner pled guilty to molesting J. D. Those convictions, Turner alleges, were governed by the Rape Shield Statute, OCGA § 24-2-3, and were inadmissible under ordinary circumstances. We disagree.

To prevail on his ineffectiveness claim, Turner must

show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.

The reasonableness of counsel’s decisions is viewed from counsel’s perspective at the time of trial and under the particular circumstances of the case. A court addressing the ineffectiveness issue is not required to approach the inquiry in any particular order, or even to address both components if the defendant makes an insufficient showing on one of them. On appellate review, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

At the hearing on Turner’s motion for a new trial, one of his trial lawyers testified that he and his co-counsel made a strategic decision to stipulate to the admissibility of the convictions of Larry and Lewis Turner because they believed that J. D.’s vocabulary and knowledge of sexual matters was greater than usual for a child of her age. Trial counsel testified that “we were attempting to . . . explain where some of that knowledge may have come from, taking the emphasis off our client, Mr. Daniel Turner, and trying to put some of the emphasis . . . [on] these prior incidences.” Trial counsel also testified that in including evidence of the other convictions, “[w]e were attempting to say [J. D.] makes allegations against every male in her life.”

Decided February 21, 2012.

Chaunda Brock, Deah B. Warren, for appellant.

Peter J. Skandalakis, District Attorney, for appellee.

“Matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” We note that, despite the admission of these convictions, the jury acquitted Turner of three of the seven charges in the indictment. “This circumstance strongly supports the conclusion that the assistance actually rendered by [Turner’s] trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” Turner has failed to meet his burden of proving that trial counsel’s performance was deficient or that but for the admission of these convictions there was a reasonable probability that the outcome of his trial would have been different. We find no error.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       (Punctuation and footnote omitted.) Cwikla v. State, 313 Ga. App. 526 (722 SE2d 156) (2012).

       The District Attorney’s Office for the Coweta Judicial Circuit, counsel for the state, failed to file an appellate brief despite being ordered by this court to do so and in contravention of our Rules 13 and 23 (b).

        Wallace v. State, 306 Ga. App. 118, 120 (1) (701 SE2d 554) (2010).

       (Punctuation and footnote omitted.) Id.

      (Citation and punctuation omitted.) Johnson v. State, 276 Ga. 57, 59-60 (3) (573 SE2d 362) (2002).

       (Footnote omitted.) Robbins v. State, 290 Ga. App. 323, 328-329 (4) (659 SE2d 628) (2008).

        Adams v. State, 283 Ga. 298, 299 (3) (658 SE2d 627) (2008).

        Horne v. State, 273 Ga. App. 132 (614 SE2d 243) (2005).

       (Citation and punctuation omitted.) Adams, supra.

       (Citation and punctuation omitted). Wade v. State, 305 Ga. App. 382, 384 (2) (a) (700 SE2d 827) (2010).

       (Punctuation and footnote omitted.) Sarratt v. State, 299 Ga. App. 568, 570 (2) (683 SE2d 10) (2009) (trial counsel not ineffective where counsel obtained directed verdicts of acquittal on a number of charges against defendant).


text:
    A11A2353.
    DOUGLAS COUNTY BOARD OF ASSESSORS v. DENYSE et al.
    (723 SE2d 705)
   DOYLE, Presiding Judge.

The Douglas County Board of Assessors (“BOA”) appeals from the grant of summary judgment to Allen and Jennifer Denyse (“Taxpayers”) contending that the trial court erred by ruling that the BOA lacked authority to issue two corrected property tax assessment notices that increased the property’s fair market value originally listed for the 2009 tax year. Specifically, the BOA argues that the trial court erred by concluding that (1) the corrected notices were not authorized on the ground that there was a clerical error in the first notice, (2) the first notice was the final assessment and not subject to change, and (3) the BOA is not authorized to issue more than one assessment notice. Based on the record before us, we disagree and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The material facts are undisputed. In 2003, the Taxpayers paid $1,525,000 to purchase a parcel of commercial property approximately nine acres in size located in Douglas County. In 2008, the BOA listed the fair market value of the property as $3,822,332, and the Taxpayers appealed to the Board of Equalization, which set the fair market value at $1,992,500. The BOA appealed that value to the Superior Court, and ultimately, a consent order was entered in July 2010 setting the 2008 value at $2,500,000. The 2008 value is not challenged in this appeal.

Meanwhile, in January 2009, the Taxpayers filed a return on the property and listed the fair market value as $1,767,893. On May 15, 2009, the BOA sent the Taxpayers a tax assessment notice listing the fair market value as $1,992,500 and stating the reason for the value as “Return Made by Taxpayer.” Three days later, the BOA sent a second notice valuing the property at $3,814,088, slightly lower than the BOA’s original 2008 value, and stating, “Reason: 2008 Value Reinstated Pending Court Decision.” Eight days after that, the BOA sent a third notice, again listing the value as $3,814,088, and stating, “Reason: 2008 Value Reinstated Pending Court Decision Correction Notice.”

In June 2009, the Taxpayers appealed the 2009 assessment to the Board of Equalization, which found that the property “value did not increase from 2008-2009” and set the 2009 value at $1,992,500. The BOA appealed that value to the superior court, and the Taxpayers moved for summary judgment, which motion was granted on the ground that the BOA lacked the authority to issue multiple notices with differing values except to correct a clerical error. Accordingly, the trial court fixed the 2009 fair market value at $1,992,500 as established by the Board of Equalization. The BOA filed this appeal.

1. The BOA contends that the trial court erred by rejecting its argument that the second and third notices were authorized because they merely corrected a clerical error in the original notice. We disagree.

The parties agree that the BOA is “empowered by OCGA § 48-5-299 (a) to issue a new assessment notice to correct [an] obvious and undisputed clerical error.” OCGA § 48-5-299 (a) provides:

It shall be the duty of the county board of tax assessors to investigate diligently and to inquire into the property owned in the county for the purpose of ascertaining what real and personal property is subject to taxation in the county and to require the proper return of the property for taxation. The board shall make such investigation as may be necessary to determine the value of any property upon which for any reason all taxes due the state or the county have not been paid in full as required by law. In all cases where the full amount of taxes due the state or county has not been paid, the board shall assess against the owner, if known, and against the property, if the owner is not known, the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations. . . .

Based on this language, this Court held in Borland, Co. v. Bartow County Bd. of Tax Assessors that county boards of tax assessors have authority to correct obvious clerical errors in a tax notice. In that case, the Court characterized the omission of a digit in the entry of the fair market value as a clerical error and affirmed a superior court’s “ruling that the tax assessors were entitled to correct the original assessment notice to make it reflect the value at which the property had actually been appraised.” In such cases, corrective notices can be proper, even after the taxpayer has paid the tax bill, when the board is not “seeking to collect additional taxes on the basis of a totally new appraisal of the value of the property but [is] seeking instead merely to correct a clerical error which occurred in reporting the original valuation figure to the taxpayer.”

Relying on this reasoning, the BOA argues that it had authority to issue the changed notices to revise the fair market value from $1,992,500 to $3,814,088. Taking at face value the stated reason for the change on the second and third notices, i.e., “2008 Value Reinstated Pending Court Decision,” the BOA’s intent was to reinstate the BOA’s original 2008 value for the 2009 tax year while the 2008 value was appealed, instead of using the $1,992,500 value set for 2008 by the Board of Equalization. There was no other explanation offered by the BOA, which produced no evidence in opposition to the Taxpayers’ motion for summary judgment. Further, when the BOA appealed the Board of Equalization’s valuation, its stated rationale for the appeal was that the $1,992,500 value was “without justification,” and the values of other similar properties were inadequately considered. Based on this rationale, we conclude that the BOA’s second and third notices were not sent merely to remedy a clerical error. Rather, they were sent to revise the BOA’s view of the proper value of the property during a pending appeal of the prior year valuation. This difference in value was not the result of a clerical error, such as the omission of a digit or the transposition of numbers, but it went to the substantive valuation decision made by the BOA. As such, the amended notices were not authorized under the “clerical error” rule identified in cases such as Bar land Co., and the trial court did not err in so ruling.

2. The BOA also argues that it is authorized to issue a revised assessment even in the absence of a clerical error, relying on regulations promulgated by the Georgia Department of Revenue, compiled as an “Appraisal Procedures Manual.” The Manual provides that “[t]he county board of tax assessors shall require the appraisal staff to observe the procedures in this manual when performing their appraisals. The county board of tax assessors may not adopt local procedures that are in conflict with Georgia law or the procedures required by this manual.”

The BOA points to the Manual’s definition of “final assessment”:

“Final assessment” means the final assessed value that is determined for the property for the applicable tax year after the following events have occurred: the time period for filing appeals has expired and any appeals that have been filed have been resolved; the authorities authorized to levy taxes on property in the county have approved the final tax levy; the Revenue Commissioner has authorized that the digest may be used as the basis for collecting taxes; the tax commissioner has mailed the final tax bills based on the authorized digest; and in the case of personal property, the appraisal staff has completed its audit of the personal property pursuant to Rule 560-11-10-.08 (4) (d) within the seven year statute of limitations.

Based on this language, the BOA argues that because an assessment is not “final” until the tax digest has been approved and the final tax bills mailed (or an appeal is resolved), the assessment may be changed at any time until that point. The BOA cites to specific instances in which amended assessments are authorized by the statutory scheme, such as when inspecting a taxpayer’s return or following a taxpayer’s notice of appeal, and argues that such instances support the conclusion that the original assessment is subject to change for a variety of reasons and for a long period of time. But relying on the aspects of BOA’s authority explicit in the statute to infer that it has other authority not expressly stated in the statute is precisely the sort of extension by implication that we must avoid when construing revenue statutes. By the logic urged by the BOA, it could increase an assessment at any point until an appeal has been resolved. While the assessed value is certainly subject to change to reflect the outcome of an appeal, we do not read the Appraisal Manual to authorize the BOA to create its own new reassessment at any time until the assessment is deemed “final.” Therefore, the Appraisal Manual is not authority for the revised notices sent by the BOA in this case.

3. Finally, the BOA argues that the trial court erred by ruling that it was not expressly authorized, as a general matter, to issue more than one notice of assessment. It relies on its statutory authorization to

make such investigation as may be necessary to determine the value of any property upon which for any reason all taxes due the state or the county have not been paid in full as required by law. In all cases where the full amount of taxes due the state or county has not been paid, the board shall assess against the owner, if known, and against the property, if the owner is not known, the full amount of taxes which has accrued and which may not have been paid at any time within the statute of limitations.

Thus, if the full amount of taxes has not been paid as required by law, the BOA is authorized to take certain action to assess the full unpaid amount that has accrued within the statute of limitations. Nevertheless, despite this language, this Court has held that county boards of assessors are not authorized to change the value of property retroactively based on a reappraisal even if the original appraised value did not accurately reflect improvements made to the property.

For example, in Fulton County Bd. of Tax Assessors v. Dean, we addressed a scenario in which the appraisal in the initial tax assessment failed to account for recent improvements on the subject property. The board of tax assessors sent a notice based on the erroneous appraisal, and the taxpayer paid the taxes on that amount. Six months later, in the same year, the board sent a second notice with an increased value to reflect the improvements. We held that the board lacked authority to send the second notice despite the first appraisal’s error in overlooking the improvements.

Such cases historically have involved scenarios in which the taxes already have been paid by the taxpayer; thus, the BOA argues that it should be able to amend the initial notice here because it acted quickly, and the taxpayer still had time to appeal. Nevertheless, these facts do not alter the BOA’s statutory authority and our previous interpretation thereof. In light of precedent prohibiting retroactive amendments to assessments absent a clerical error or some other lawful basis, and in the absence of clear statutory authority for such amendments, we conclude that the BOA’s second and third notices were unauthorized in this case. Therefore, we affirm the trial court’s judgment.

Judgment affirmed.

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

Decided February 21, 2012.

Freeman, Mathis & Gary, Jack R. Hancock, Michelle Y. Terry, Robert A. Kunz, for appellant.

Hartley, Rowe & Fowler, Joseph H. Fowler, for appellees.

         Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Barland Co. v. Bartow County Bd. of Tax Assessors, 176 Ga. App. 798, 799 (1) (338 SE2d 16) (1985).

       Id.

       Id. at 799.

       Id. at 800 (1).

       At oral argument, counsel for the BOA suggested that even a changed interpretation of the BOA’s valuation authority could constitute a clerical error.

       See Morton v. Glynn County Bd. of Tax Assessors, 294 Ga. App. 901, 904 (1) (670 SE2d 628) (2008) (noting promulgation of the manual in Georgia regulations).

       Ga. Comp. R. & Regs. r. 560-11-10-.01 (3).

       Ga. Comp. R. & Regs. r. 560-11-10-,02 (1) (i).

       See, e.g., OCGA § 48-5-306 (a) (authorizing the board to “meet at any time” to review tax returns); OCGA § 48-5-299 (c) (authorizing certain changes in valuation during an otherwise frozen two year post-appeal period).

       See Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 724 (1) (368 SE2d 326) (1988) (revenue statutes are construed “strictly so as to resolve doubt in favor of the taxpayer”) (punctuation omitted).

       OCGA § 48-5-299 (a).

       See Fulton County Bd. of Tax Assessors v. Dean, 219 Ga. App. 137, 138 (464 SE2d 257) (1995); Ga. Utilities Co., 186 Ga. App. at 725 (1).

        Dean, 219 Ga. App. at 137.

       See id. at 137-138.

       See id. at 138.

       See id.

       See id. at 138-139.


author: Miller, Judge.

text:
    A11A1778.
    A11A2221.
    JACKSON v. THE STATE. ESTERS v. THE STATE.
    (724 SE2d 9)
   Miller, Judge.

Courtne Darnell Jackson and Myron Esters were jointly indicted, tried, and convicted of trafficking in 3, 4-methylenedioxy-methamphetamine (“MDMA” or “ecstacy”) (OCGA § 16-13-31.1); possession of marijuana with intent to distribute (OCGA § 16-13-30 (j) (D); and possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (4), (5)). Both appeal from the trial court’s denial of their respective motions for new trial. In Case No. A11A1778, Jackson challenges the sufficiency of the evidence supporting his convictions. In Case No. A11A2221, Esters contends that his trial counsel provided ineffective assistance. We discern no error and affirm in both cases.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict and [the defendant] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia[, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979)].

(Citation, punctuation and footnotes omitted.) White v. State, 295 Ga. App. 366 (671 SE2d 851) (2008).

So viewed, the trial evidence shows that on August 5, 2008, Jackson, who lived in Tennessee, decided to travel to Atlanta, Georgia to visit friends. Jackson invited his acquaintance and co-defendant, Patreecia Nelson, to accompany him on the trip.

Upon arriving in Atlanta, Jackson and Nelson met Esters at his apartment. Jackson and Esters entered the apartment, while Nelson stayed in the vehicle. While inside the apartment, Jackson observed Esters handling a lot of individual bags of marijuana and ecstacy pills and “looking for something to put his drugs in.” Shortly thereafter, Jackson and Esters exited the apartment and returned to the vehicle. Jackson opened the trunk of the vehicle, and stood by as Esters placed a shoe box inside. Jackson and Esters stood at the vehicle’s open trunk for approximately two or three minutes. They later closed the trunk and re-entered the vehicle. Jackson, Esters, and Nelson then left the apartment and began traveling back to Tennessee.

Two officers with the Resaca Police Department were conducting interstate traffic patrol and observed Jackson’s vehicle weaving between lanes. Nelson was driving the vehicle. The officers conducted a traffic stop of the vehicle based upon the failure to maintain lane violation.

After approaching the vehicle, the officer observed that each of the occupants was extremely nervous, and Jackson was “shaking real bad[.]” As part of the ongoing traffic stop, the officer performed a free air search around the vehicle with his trained K-9 unit dog, and the dog alerted on the trunk of the vehicle. A search of the vehicle’s trunk then ensued.

Upon searching the trunk, the officers recovered Jackson’s bag, which contained 750.1 grams/26.45 ounces of marijuana packaged in three individual bags, 29.67 grams of MDMA or ecstacy pills packaged in a separate cellophane bag, and a loaded handgun. Jackson informed the officers that the handgun belonged to him. Jackson, Esters, and Nelson were arrested and charged jointly as parties to the drug offenses.

Jackson testified in his defense at trial. He initially testified that he had seen Esters with marijuana and ecstacy, but later gave inconsistent testimony that he was unaware of the ecstacy pills until after the traffic stop. Jackson admitted that he was aware that marijuana was inside the vehicle and that he would have driven Esters to Tennessee with the drugs if they had not been stopped by the officers.

Esters also testified at trial. The trial evidence included a photograph showing Esters in possession of the handgun that had been seized during the search of the vehicle’s trunk. Esters, however, denied having had any access to the vehicle’s trunk. He further denied having had any prior knowledge or ownership of the contraband.

Case No. A11A1778

1. Jackson contends that the trial evidence was insufficient to support his convictions. His contention is without merit.

(a) Joint Constructive Possession. Although Jackson was not driving the vehicle in which the contraband was found at the time of the stop, he was the owner of the vehicle.

Under Georgia law, the owner of an automobile is presumed to be in possession and control of any contraband found in the automobile, but this presumption is rebuttable by evidence of equal access to the contraband by others. . . . However, the equal access rule, conceptually and historically, has no application where, as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband.

(Citations, punctuation and footnotes omitted.) White, supra, 295 Ga. App. at 367-368. “Possession may be joint or exclusive, and actual or constructive.” (Citation, punctuation and footnote omitted.) Id. “[Jjoint constructive possession with another will sustain a conviction for possession of contraband.” (Citation and punctuation omitted.) Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009).

Here, Jackson, Esters, and Nelson were all charged as parties to the drug and weapon offenses. The trial evidence set forth above established circumstantially that Jackson and Esters had equal access to the contraband and were in joint constructive possession of it. Notwithstanding any conflicts or inconsistencies in the evidence, the jury was authorized to find that Jackson knew that Esters had possession of the marijuana and ecstacy. The evidence also showed that Jackson allowed Esters to place the drugs in the trunk of his vehicle, and that Jackson knowingly transported the drugs in his vehicle. Moreover, an officer testified that Jackson had claimed ownership of the handgun.

Jackson’s “[presence, companionship, and conduct before and after the offense [s] are circumstances from which [his] participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Robinson v. State, 175 Ga. App. 769, 773 (3) (334 SE2d 358) (1985). The evidence supported a finding that Jackson was a participant and a party to the crimes charged. See OCGA § 16-2-20 (a), (b) (3) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. ... A person is concerned in the commission of a crime only if he. . . [¿Intentionally aids or abets in the commission of the crime[.]”); Waters v. State, 280 Ga. App. 566, 567-568 (634 SE2d 508) (2006) (evidence that the defendant transported his co-defendant in a car knowing that he was in possession of the drugs authorized a finding that defendant was in joint constructive possession of the drug contraband); Robinson, supra, 175 Ga. App. at 771 (1) (concluding that the circumstantial evidence sufficiently established that each of the co-defendants had constructive possession of the drug contraband found in the trunk of the automobile).

(b) Trafficking in MDMA. Under OCGA § 16-13-31.1, the felony offense of trafficking in MDMA is committed when a person knowingly possesses 28 grams or more of the MDMA drug substance. The evidence established that the amount of MDMA in Jackson’s constructive possession was 29.67 grams, exceeding that required for the trafficking offense. See id. The evidence therefore supported the trafficking conviction. Id.

(c) Possession of Marijuana with Intent to Distribute. OCGA § 16-13-30 (j) (1) proscribes that “[i]t is unlawful for any person to . . . possess with intent to distribute marijuana.” To support a conviction for this offense, the State must prove more than mere possession or intent for personal use. See Pitts v. State, 260 Ga. App. 553, 556-557 (3) (580 SE2d 618) (2003). Rather, the evidence must show an intent to distribute. See id.

Here, Jackson testified that he had observed Esters handling “lots” of marijuana. The testimony of the officers established that the marijuana discovered in the vehicle weighed 750.1 grams or 26.45 ounces, which was in excess of one pound. The marijuana was packaged into three individual bags and had a street value of over $1,000. Significantly, the marijuana was found with a trafficking amount of MDMA and a loaded weapon, constituting evidence of involvement in the drug trade. See Causey v. State, 274 Ga. App. 506, 508 (618 SE2d 127) (2005) (affirming conviction for possession of marijuana with intent to distribute based upon evidence that defendant also was in possession of large quantities of another illegal drug and a weapon); Pitts, supra, 260 Ga. App. at 557 (3) (affirming conviction for possession of marijuana with intent to distribute based upon evidence that 28 grams of marijuana divided into five individual packages was found with a large, distribution amount of another illegal drug). Although Jackson and Esters both testified at trial, neither claimed that the marijuana was for personal use. There likewise was no evidence that any of the co-defendants were drug users or were under the influence of drugs. As such, the jury was authorized to reject a hypothesis that the marijuana was for personal use, as opposed to distribution. We have consistently held that

[qjuestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Punctuation and footnote omitted.) Ferrell v. State, 312 Ga. App. 122, 125 (1) (717 SE2d 705) (2011). Viewed in the light most favorable to upholding the verdict, these circumstances authorized a finding that the marijuana was for distribution. See Causey, supra, 274 Ga. App. at 508; Pitts, supra, 260 Ga. App. at 557 (3).

(d) Possession of a Firearm During the Commission of a Felony. The trial evidence also authorized Jackson’s conviction for possession of a firearm during the commission of the drug felony offenses. OCGA § 16-11-106 (b) (4), (5) pertinently provides that a person commits a felony when he possesses a firearm “on or within arm’s reach” of his person during the commission of a felony crime involving the possession with intent to distribute marijuana or the trafficking of illegal drugs. “By adding the words ‘within arm’s reach,’ the legislature extended the application of the statute to include weapons to which a felon had immediate access in addition to those weapons the felon actually had on his person.” Carswell v. State, 251 Ga. App. 733, 735 (1) (b) (555 SE2d 124) (2001). “[T]he final element of the crime of possession of a firearm during commission of a crime required proof only that defendant passed even momentarily within arm’s reach of the gun.” Gibson v. State, 223 Ga. App. 103 (1) (476 SE2d 863) (1996); see also Davenport v. State, 308 Ga. App. 140, 148 (1) (c) (706 SE2d 757) (2011) (“[W]hen a defendant is charged under this statute, the evidence is sufficient to sustain a conviction when it is shown at trial that a firearm was within arm’s reach of the defendant at any point during the commission of the crime, thus giving the defendant immediate access to the weapon.”) (punctuation and footnotes omitted).

The evidence in this case showed that Jackson had immediate access to the handgun when he and Esters stood at the open trunk of the vehicle for approximately two or three minutes, depositing the drugs in Jackson’s bag, where the handgun was also located. As such, the jury could conclude that Jackson had been within arm’s reach of the handgun when the drugs and the handgun were placed together. See Hall v. State, 283 Ga. App. 266, 266-268 (641 SE2d 264) (2007) (affirming conviction when firearms were found within arm’s reach of drugs).

Accordingly, Jackson’s convictions were authorized.

Case No. A11A2221

2. Esters contends that his trial counsel provided ineffective assistance.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. [See] Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts. Furthermore, there is a strong presumption that the performance of counsel was within the wide range of reasonable professional lawyering, and we cannot reach a contrary conclusion unless defendant successfully rebuts the presumption by clear and convincing evidence. Judicial scrutiny of counsel’s performance must be highly deferential.

(Citations and punctuation omitted.) Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010). Applying these standards, we turn to review Ester’s claims.

(a) Esters first contends that his trial counsel was ineffective for failing to file a motion to suppress the contraband evidence. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citations and punctuation omitted.) Spencer v. State, 293 Ga. App. 450 (667 SE2d 223) (2008). Esters has failed to make the requisite showing in this case, and thus, his claim fails.

Here, the officers stopped the vehicle for failure to maintain lane. “Failing to maintain one’s lane justifies a stop of a vehicle for a traffic violation [under OCGA § 40-6-48].” (Punctuation and footnote omitted.) Hardaway v. State, 309 Ga. App. 432, 434 (1) (710 SE2d 634) (2011); see also Davis v. State, 236 Ga. App. 32, 33 (1) (510 SE2d 889) (1999) (“Weaving without reason into nearby lanes violates [OCGA § 40-6-48 (1)]” and justifies a traffic stop). We further note that Esters has neither argued nor shown that the traffic stop was prolonged by the dog’s free air search around the exterior of the vehicle. Esters himself testified that they had not been detained for long during the stop and search. When the dog alerted on the vehicle’s trunk, the traffic stop was still in progress.

The officers were not required to have articulable suspicion of illegal drug activity in order to conduct the free air search outside the vehicle. We have previously held that

[t]he use of a drug sniffing dog to conduct a free air search around the exterior of a vehicle during the course of a lawful traffic stop does not implicate the Fourth Amendment under the United States Constitution. In fact, even without reasonable and articulable suspicion, an officer may use a canine trained in drug detection to sniff a vehicle’s exterior. And, once the drug dog alerted, the officers had probable cause to search the car.

Decided February 22, 2012.

Edward P. Dettmar, for appellant (case no. A11A1778).

Jennifer E. Hildebrand, for appellant (case no. A11A2221).

(Citations and punctuation omitted.) State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006); see also Hardaway, supra, 309 Ga. App. at 435 (1); Bowens v. State, 276 Ga. App. 520, 522 (623 SE2d 677) (2005). Under these circumstances, Esters has not shown that a motion to suppress would have been meritorious. See Hardaway, supra, 309 Ga. App. at 435 (1); Bowens, supra, 276 Ga. App. at 521-522. “It is not ineffective assistance of counsel to refrain from making a futile motion or filing a meritless motion to suppress.” (Citations and punctuation omitted.) King v. State, 287 Ga. App. 375, 377 (2) (a) (651 SE2d 496) (2007).

(b) Esters next argues that his trial counsel failed to adequately meet with him prior to trial and did not have sufficient time to prepare for trial. His claims, however, afford no basis for reversal. Significantly,

[Esters] fails to demonstrate how additional time spent with counsel prior to trial would have [benefitted] his defense. The complaint of insufficient meetings with trial counsel is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client.

(Citation and punctuation omitted.) King, supra, 287 Ga. App. at 378 (2) (b).

At the motion for new trial hearing, trial counsel testified that during his trial preparations, he reviewed the State’s file, met with Esters, and developed the defense strategy. At trial, he examined the witnesses in accordance with the trial strategy. Esters has not pointed to any evidence favoring his defense that was not discovered or presented by trial counsel at trial. In the absence of evidence establishing that there was a reasonable likelihood that additional trial preparation would have changed trial counsel’s advice or the outcome of the trial, Esters’s claim fails. See Hammett v. State, 297 Ga. App. 235, 237 (676 SE2d 880) (2009); In the Interest of S. U., 232 Ga. App. 798, 801 (2) (503 SE2d 66) (1998).

Judgments affirmed.

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

T Joseph Campbell, District Attorney, Rosemary M. Greene, Assistant District Attorney, for appellee.

       We note that Jackson has failed to file or include in his brief an enumeration of errors, as required by OCGA § 5-6-40 and Court of Appeals Rules 22 (a) and 25 (a) (2). We nevertheless address Jackson’s arguments to the extent that they may be ascertained from his brief. See OCGA § 5-6-30 (Georgia’s Appellate Practice Act shall be liberally construed to avoid refusal to consider any points raised); State v. Madison, 311 Ga. App. 31 (1) (714 SE2d 714) (2011) (reaching the merits of the case although the State failed to include enumerations of error in its brief since it was apparent from the notice of appeal, the record, and the brief what judgment was appealed and what errors were asserted); Blockum v. Fieldale Farms Corp., 271 Ga. App. 591, 592 (1) (610 SE2d 82) (2005) (addressing appellant’s arguments, to the extent that they could be ascertained from his briefs, notwithstanding the absence of enumerations of error).

       Although Nelson also was arrested and charged with the drug offenses, the jury acquitted her of the charges at trial.

       “[T]he jury is authorized to believe or disbelieve all or any part of the testimony of witnesses.” (Citation and punctuation omitted.) Reed v. State, 244 Ga. App. 146, 147 (634 SE2d 871) (2000). “The resolution of any inconsistencies in the evidence was for the jury[,] as it resolves conflicts in the evidence, not this Court. The jury obviously resolved the inconsistencies and the resulting credibility issues, in favor of finding [Jackson] guilty. We are not authorized to revisit such issues on appeal.” (Punctuation and footnotes omitted.) Cosby v.

        State, 289 Ga. App. 36, 37-38 (656 SE2d 186) (2007).

         We note that in Vines v. State, 296 Ga. App. 543, 547 (1) (675 SE2d 260) (2009), and Parris v. State, 226 Ga. App. 854, 856 (487 SE2d 690) (1997), this Court reversed convictions for possession of marijuana with intent to distribute since the circumstantial evidence failed to exclude the possibility that the marijuana was for the defendants’ personal use. Significantly, in both Vines and Parris, the officers had immediately detected the strong odor of marijuana inside the defendant’s car or on the defendant’s person at the time of the respective traffic stops, which gave rise to a reasonable hypothesis that the drugs had been for the defendants’ personal use. See Vines, supra, 296 Ga. App. at 543 (upon initiating the traffic stop, the officer “immediately smelled ‘the overwhelming odor of marijuana’ coming out of the car”); Parris, supra, 226 Ga. App. at 856 (concluding that the evidence presented a “credible theory that the marijuana was for [defendant’s] personal use, especially in light of testimony that when arrested [defendant] exuded the odor of burnt marijuana”). Here, however, there was no evidence that the strong odor of marijuana was immediately detected inside the vehicle or was exuding from Jackson or Esters. Likewise, there was no evidence indicating that Jackson or Esters appeared to be under the influence of marijuana at the time of the stop. As such, the circumstances presented in Vines and Parris are distinguishable.


text:
    A11A1941.
    TRAVIS v. THE STATE.
    (724 SE2d 15)
   Miller, Judge.

Following a jury trial, Kaitlin Travis was convicted of driving under the influence (DUI) (OCGA § 40-6-391 (k) (1)), reckless driving (OCGA § 40-6-390 (a)), and speeding (OCGA § 40-6-181 (b) (5)). Travis filed a motion for new trial, which the trial court denied. Travis appeals, arguing that (1) there was insufficient evidence to support her convictions; she further argues that the trial court erred by (2) failing to exclude the results of a state-administered breath test, because the implied consent notice was misleading, inaccurate, and ambiguous; (3) denying Travis’s motion for mistrial where the jury heard the numeric result of Travis’s alco-sensor test; (4) denying Travis’s motion for mistrial after the prosecutor expressed his personal opinion as to the evidence; (5) failing to instruct the jury on the statutory presumption of sobriety; (6) permitting the jury to view a law enforcement training video that depicted a horizontal gaze nystagmus (“HGN”) sobriety test; and (7) failing to merge her speeding and reckless driving convictions in sentencing. We agree with respect to Travis’s last enumeration insofar as the offense of speeding should have merged into that of reckless driving, and we therefore vacate Travis’s speeding conviction and sentence. As to Travis’s other six enumerations of error, however, we discern no error and affirm.

Viewed in the light most favorable to the jury’s verdict, see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that after midnight on September 13, 2009, when Travis was 20 years old, she was stopped by a Georgia State Patrol trooper for exceeding the posted speed limit in a construction zone. During the traffic stop, the trooper detected an odor of alcohol emanating from Travis. He asked her step out of her vehicle in order to perform a HGN sobriety test and have Travis blow into a portable alco-sensor device, both of which indicated the presence of alcohol. Although Travis initially told the trooper that she had not had anything to drink, she later admitted to having consumed alcohol earlier in the day. Travis consented to a state-administered breath test, which resulted in blood alcohol readings of 0.037 and 0.036 grams. Travis was arrested for speeding and DUI, and was later charged with reckless driving.

1. Travis argues that there was insufficient evidence to support her reckless driving conviction. On appeal from a criminal conviction, we view the evidence in a light most favorable to the jury’s verdict to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Jackson, supra, 443 U. S. at 319 (III) (B).

“Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” OCGA § 40-6-390 (a). “The offense of reckless driving may be committed in a variety of ways, and whether a defendant’s manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury.” (Citation omitted.) Bautista v. State, 305 Ga. App. 210, 212 (1) (699 SE2d 392) (2010).

On appeal, Travis concedes that she was speeding, but challenges the absence of evidence showing any specific reckless acts committed by Travis. Even when unaccompanied by other traffic violations, however, speeding “can form the basis for a reckless driving conviction if the [S]tate presents evidence that a defendant was driving at an excessive rate of speed given the posted speed limit and the driving conditions existing at the time.” (Punctuation, footnote and emphasis omitted.) Fraser v. State, 263 Ga. App. 764, 765-766 (1) (589 SE2d 329) (2003). Here, the state trooper testified that Travis was driving 32 miles per hour above the posted speed limit on a portion of the highway designated as a construction zone and along which construction barrels were situated. In addition, Travis was driving her vehicle late at night after having admittedly consumed alcohol. This evidence was sufficient to show that Travis was driving her vehicle in a manner exhibiting a reckless disregard for the safety of others. Therefore, we affirm Travis’s reckless driving conviction.

2. Travis contends that the trial court erred by denying her motion to exclude the results of a state-administered breath test, arguing that the state trooper’s implied consent warning was misleading, inaccurate, and ambiguous.

When we review a trial court’s decision on . . . 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 uncontro-verted 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.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005).

One who operates a motor vehicle on Georgia’s highways is deemed to have given consent to chemical testing of a bodily substance to determine the presence of alcohol or other drugs. Although consent is implied, before test results may be admitted into evidence the state must show that the accused had been advised of his rights under the Implied Consent Statute.

(Footnotes omitted.) State v. Peirce, 257 Ga. App. 623, 625 (1) (571 SE2d 826) (2002); see OCGA § 40-5-67.1 (b). For suspects under the age of 21, OCGA § 40-5-67.1 (b) (1) requires the arresting officer to give an implied consent notice stating in pertinent part that “[i]f you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.” The statute further provides that the implied consent notice “need not be read exactly so long as the substance of the notice remains unchanged.” OCGA § 40-5-67.1 (b).

Here, the videotape of the stop and arrest shows that the state trooper read Travis the appropriate implied consent notice for an underage suspect, but initially misstated the legal limit as “0.082,” before correcting himself within one second to indicate the legal limit as 0.02. Travis thereafter agreed to submit to a state-administered breath test, which registered blood alcohol readings of 0.037 and 0.036. The trial court denied Travis’s motion to exclude the results of her breath test, finding that the implied consent notice was properly read in light of the trooper’s correction.

“The determinative issue with the implied consent notice is whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” (Punctuation and footnote omitted.) In the Interest of R. M., 305 Ga. App. 483, 485 (1) (699 SE2d 811) (2010). In arguing that the state trooper’s implied consent notice was not substantively accurate in this case, Travis relies primarily on Kitchens v. State, 258 Ga. App. 411 (574 SE2d 451) (2002). However, that case is distinguishable. There, the arresting officer “drastically overstated]” the legal limit of blood alcohol concentration as 10 grams instead of 0.10 grams. Kitchens, supra, 258 Ga. App. at 412-414 (1). The officer made this overstatement twice — once when he read the implied consent notice and again in response to the defendant’s confusion about the officer’s implied consent. Id. at 412 (1). Significantly, the officer in Kitchens not only repeatedly overstated the legal limit, but also misinformed the defendant that her Alabama driver’s license would be suspended if she refused to submit to the breath test. Id. at 412-413, 414 (1) (“[E]ven assuming that drastically overstating the legal limit of alcohol concentration had no effect on [the defendant’s] decision to submit to the state’s test, the record discloses a clearer causal connection between the officer misinforming [the defendant] about the consequences of her refusal to take the test and her decision to submit to the test.”).

Here, unlike the implied consent notice in Kitchens, the state trooper’s misstatement of the legal limit amounted to a single slip of the tongue; he immediately corrected himself to indicate the legal limit as 0.02 and otherwise provided no additional misstatements. Moreover, the videotape recording demonstrates that before the trooper read the implied consent notice, Travis told the trooper that she knew 0.08 grams was the legal limit applicable to individuals over the age of 21. Under the circumstances of this case, we cannot say that the trooper’s initial overstatement of the legal blood alcohol concentration, which he corrected immediately, was so misleading that it rendered Travis incapable of making an informed decision about whether to submit to chemical testing. Therefore, the trial court did not err in denying Travis’s motion to exclude the breath test results.

3. Travis argues that the trial court erred by denying her motion for mistrial after the jury heard the numerical result of the alco-sensor test. “The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial.” (Citation omitted.) Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995).

An alco-sensor is used only as an initial screening measure that gives a positive/negative result and aids the police officer in determining probable cause to arrest a motorist suspected of DUI of alcohol. Heller v. State, 234 Ga. App. 630, 632 (3) (507 SE2d 518) (1998). It is not a tool used to determine the amount of alcohol in a person’s blood, and numeric results of an alco-sensor test are inadmissible. Id. Accordingly, the State agreed at trial to mute the portion of the videotaped traffic stop during which Travis read out loud the numeric result of her alco-sensor test. When the videotape was played for the jury, however, the State accidentally restored the volume approximately one second too soon, so that the jury heard Travis state the numerical result of “.04.” Travis subsequently moved for a mistrial, which the trial court denied. The trial court found that the jury’s hearing of the numeric result alone, without any sort of explanation as to what that number meant, was not grounds for a mistrial. The trial court nevertheless suggested the issuance of a curative instruction informing the jury that alco-sensor results are not used as evidence of the amount of alcohol in a person’s blood. See, e.g., Simms v. State, 223 Ga. App. 330, 333 (1) (477 SE2d 628) (1996) (“While it was error to have the trooper testify as to the test score obtained by appellant on the alco-sensor test, this error was rendered harmless by the timely giving of a curative instruction.”) (citation omitted). To avoid drawing undue attention to the numeric result, the parties agreed to have the trial court issue its curative instruction at the end of the trial along with its other jury instructions. The jury was given the following curative instruction:

Members of the jury, I instruct you that with the alco[-] sensor device, which is a portable breath testing device, the results are not used as evidence of the amount of alcohol. The aleo [-] sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.

Wé note that Travis failed to timely renew her motion for mistrial after the issuance of this curative instruction and thus waived any error in the denial of that motion. See Bell v. State, 294 Ga. App. 779, 782 (5) (670 SE2d 476) (2008). Even if Travis had properly preserved this matter, however, given the trial court’s jury instruction, along with the totality of the evidence which was sufficient by itself to support the jury’s finding that Travis was guilty beyond a reasonable doubt of DUI, we find no abuse in the trial court’s discretion in denying Travis’s motion for mistrial. See Sturdy v. State, 192 Ga. App. 71, 72-73 (383 SE2d 632) (1989).

4. Travis also asserts that she was entitled to a mistrial because, during publication of the videotaped traffic stop, the jury may have overheard the prosecutor’s remark that Travis was “swaying” during her HGN test. “The refusal to grant a mistrial based on alleged improper remarks by the prosecutor is within the discretion of the trial court, OCGA § 17-8-75, and we will not interfere with the decision on appeal unless there is manifest abuse.” (Citation and punctuation omitted.) Ryan v. State, 276 Ga. App. 87, 89 (1) (622 SE2d 446) (2005).

At the conclusion of the videotape, Travis’s counsel informed the trial court that because the audio portion of the videotape was played by placing a microphone over the laptop computer at the State’s table, the microphone accidentally picked up the prosecutor’s comment that Travis was swaying during the HGN test. Travis’s counsel stated that although both he and Travis overhead the prosecutor’s remark, he did not know whether the jury had overheard it. Travis’s counsel nevertheless requested that the trial court either question each member of the jury, or otherwise declare a mistrial. The trial court denied both requests.

Travis argues that the prosecutor’s comment “not only expressed his personal opinion as to what the jury was seeing for the first time, but also bolstered the credibility of the [t]rooper.” However, there is no indication that either the jury or the trial court heard the remark; nor was the remark recorded. Cf. Miller v. State, 201 Ga. App. 374, 375 (3) (411 SE2d 112) (1991). Moreover, the trial court explained to the jury, both in its preliminary and closing instructions, that evidence consisted only of witness testimony and exhibits and that the jurors were to decide the case for themselves, based solely on the testimony heard from the witness stand and any exhibits admitted into evidence. Under these circumstances, we cannot say that the trial court abused its discretion in denying Travis’s motion for mistrial. See id.

5. Travis contends that the trial court erred by failing to give the jury her requested instruction on the statutory presumption of sobriety as set forth in OCGA § 40-6-392 (b) (1). We disagree. “Among other requirements, a jury instruction must be adjusted to the evidence and embody a correct, applicable, and complete statement of law. When any part of the requested charge is confusing, inapt, incorrect, or not authorized by the evidence, denial of the request is proper.” (Citations omitted.) Jones v. State, 242 Ga. App. 357, 359 (3) (529 SE2d 644) (2000).

Travis contends that she was entitled to a jury charge on the statutory presumption of sobriety because her state-administered breath test registered a blood alcohol concentration of less than 0.05 grams. Under OCGA § 40-6-392 (b) (1), “[i]f there was at that time an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol, as prohibited by [OCGA § 40-6-391 (a) (1) and (a) (4)].” Thus, the presumption applies to violations of OCGA § 40-6-391 (a) (1) or (a) (4), for DUI to the extent that the person was a less safe driver (“DUI less safe”). See Ricks v. State, 255 Ga. App. 188, 190 (1) (564 SE2d 793) (2002). Such a presumption does not arise, however, with respect to violations of OCGA § 40-6-391 (k) (1), for DUI of more than 0.02 percent blood alcohol content while under the age of 21. See OCGA § 40-6-392 (b), (c) (3).

Here, Travis was charged with DUI under both OCGA § 40-6-391 (a) (1) and OCGA § 40-6-391 (k) (1). Solely with respect to her DUI less safe count under OCGA § 40-6-391 (a) (1), Travis requested that the trial court instruct the jury on the presumption of sobriety set forth in OCGA § 40-6-392 (b) (1). The trial court denied Travis’s request, finding that in light of the underage count under OCGA § 40-6-391 (k) (1), the OCGA § 40-6-392 (b) (1) presumption of sobriety did not apply and would otherwise be confusing to the jury.

Pretermitting whether the trial court erred by refusing to instruct the jury on the OCGA § 40-6-392 (b) (1) presumption, Travis’s request was predicated upon the DUI less safe count, of which the jury found her not guilty. Therefore, any error as to that count was harmless. Cf. Greene v. State, 312 Ga. App. 666, 671 (2) (722 SE2d 77) (2011). Travis nevertheless contends that the trial court’s refusal to charge the jury on OCGA § 40-6-392 (b) (1) prejudiced her ability to defend against the count of reckless driving, thereby warranting reversal of her conviction on that count. OCGA § 40-6-392 (b) (1), however, applies only to DUI less safe violations, and did not entitle Travis to a presumption of sobriety with respect to her reckless driving violation. See Cornell v. State, 239 Ga. App. 127, 128 (2) (520 SE2d 782) (1999) (“It is clear that OCGA § 40-6-392 (b) (1) creates a rebuttable negative presumption in criminal actions arising out of acts alleged to have been committed by any person in violation of Code Section 40-6-391.”) (citation omitted). Therefore, Travis’s contention fails to provide a basis for reversal of her reckless driving conviction.

6. Travis argues that the trial court erred by permitting the jury to view a law enforcement training videotape about the HGN sobriety test. We disagree.

“[C]ertain materials may be used as tools to illustrate testimony without being admitted as demonstrative evidence, but not where the illustrative material contains erroneous or prejudicial matter unauthenticated by the testimony which it purports to illustrate.” (Citations and punctuation omitted.) Pickren v. State, 269 Ga. 453, 455 (2) (500 SE2d 566) (1998). Moreover, “[w]hen the materials are not introduced into evidence but are used solely to illustrate the testimony of a witness, minimal authentication is generally required.” (Citations and punctuation omitted.) J. B. Hunt Transport v. Brown, 236 Ga. App. 634, 635 (1) (b) (512 SE2d 34) (1999) (citing Vaughn v. State, 173 Ga. App. 716, 718 (6) (327 SE2d 747) (1985)).

Here, during the testimony of the state trooper, the State was permitted to show the jury a video used to train law enforcement officers in identifying clues during the HGN test. A review of the record shows that the purpose of using the video was to aid the jury in understanding the state trooper’s testimony about how a person’s eyes respond during the HGN test. Notably, the state trooper authenticated and identified the video as the one he had viewed earlier that day and that accurately represented HGN as it would appear on a person who is under the influence of alcohol.

[W]hen the trial court has exercised its discretion to admit [materials for the purpose of illustrating testimony], it will only rarely be found in error, at least if potentially misleading inaccuracies have been pointed out by witnesses for the proponent, or could have been exposed upon cross-examination.

(Citation omitted.) J. B. Hunt Transport, supra, 236 Ga. App. at 636 (1) (b). Here, given its purpose of illustrating the state trooper’s testimony, along with the fact that any inaccuracies in the training video’s depiction of HGN could have been brought out upon cross-examination of the state trooper, we hold that the trial court did not abuse its discretion in allowing the HGN test training video to be played to the jury. Cf. id.; accord Hartsock u. State, 322 SW3d 775, 777-780 (Tex. Ct. App. 2010) (holding that trial court did not abuse its discretion in admitting law enforcement training DVD showing how a person’s eyes look with and without HGN, where DVD was shown to the jury for the purpose of helping them understand the officer’s testimony about the HGN test administered to the defendant).

7. Travis contends that the trial court erred in failing to merge, for purposes of sentencing, the offense of speeding into that of reckless driving. Travis argues that the speeding offense is included in the reckless driving offense because the only evidence to support it was Travis’s speeding violation. Cf. Luckey v. State, 313 Ga. App. 502, 505 (3), n. 2 (722 SE2d 114) (2012) (citing Drinkard v. Walker, 281 Ga. 211, 213 (636 SE2d 530) (2006)). The State concedes, and we agree, that the two offenses should have been merged for sentencing. Travis should have been convicted and sentenced only for reckless driving. Therefore, Travis’s conviction and sentence for speeding are vacated and this case is remanded for resentencing.

Decided February 22, 2012.

H. Maddox Kilgore, for appellant.

Robert Stokely, Solicitor-General, Stephen J. Tuggle, Sandra N. Wisenbaker, Assistant Solicitors-General, for appellee.

Judgment affirmed, sentence vacated, and case remanded.

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

       We need not address Travis’s challenge to the sufficiency of evidence to support her speeding conviction, because, as explained in Division 7 below, that conviction must be vacated for other reasons.

       The videotape recording specifically shows the trooper stating the legal limit as “0.082 [one second pause] 0.02 grams or more.” The trooper explained that he had meant to say 0.02 grams or more, and was merely trying to correct himself after making the mistake of saying

       Notably, the state trooper detected an odor of alcohol emanating from Travis and observed six out of six possible clues on the HGN test; the alco-sensor tested positive for the presence of alcohol; Travis admitted to having consumed alcohol earlier in the day; and the state-administered breath test indicated blood alcohol levels of 0.037 and 0.036. See Goddard v. State, 242 Ga. App. 154, 154-155 (1) (529 SE2d 184) (2000) (concluding evidence was sufficient to support defendant’s conviction for DUI when he was under the age of 21, where officer detected a strong odor of alcohol emanating from defendant’s vehicle, defendant admitted to having three beers, defendant tested positive for alcohol after blowing into the alco-sensor device, and the results of his state-administered breath test indicated blood alcohol levels of over 0.02 grams). In addition, the State introduced similar transaction evidence showing Travis’s prior guilty plea to DUI.

       To the extent that Travis is also challenging a similar remark made by the prosecutor during his closing argument, the record reflects that Travis interposed no objection at the time it was made, and she therefore waived any objection to the prosecutor’s closing argument. See Steverson v. State, 276 Ga. App. 876, 878-879 (2) (625 SE2d 476) (2005).

       The state trooper later testified that Travis was swaying during his administration of the HGN test.

       These subsections specifically provide as follows:
      (a) A person shall not drive or be in actual physical control of any moving vehicle while:
      (1) Under the influence of alcohol to the extent that it is less safe for the person to drive;
      (4) Under the combined influence of any two or more of the substances specified in paragraphs (1) through (3) of this subsection [i.e., alcohol, drugs, glue, aerosol, or other toxic vapor] to the extent that it is less safe for the person to drive[.]
      (Punctuation omitted.) OCGA § 40-6-391 (a) (1), (4).

       OCGA § 40-6-391 (k) (1) specifically provides as follows: “A person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person’s alcohol concentration is 0.02 grams or more at any time within three hours after such driving or being in physical control from alcohol consumed before such driving or being in actual physical control ended.”

       Although not set forth in her enumeration of error, Travis also contends that the trial court erred by denying Travis’s request to make the HGN training videotape a part of the record on appeal. Travis also filed a Motion to Supplement the appellate record with the videotape. As this Court has cautioned before,
      when it appears that photographs or audio or video recordings might be needed on appeal by a party, such party should move the trial court to allow duplicates to be admitted into the record in addition to the originals and be retained by the clerk of the court for inclusion in any appellate record. The trial court should include in its order instructions that the clerk of court include such copies in the appellate record transmitted to this Court, where the appealing party either requests their inclusion or requests that nothing be omitted from the record on appeal. Such a practice would ensure the completeness of the appellate record without delay.
      (Punctuation omitted.) Lynn v. State, 300 Ga. App. 170, 173 (2) (684 SE2d 325) (2009). We can nevertheless address Travis’s enumeration of error because the State does not dispute the accuracy of the offending excerpts cited by Travis. Cf. Griffin v. State, 243 Ga. App. 282, 285 (4), n. 1 (531 SE2d 175) (2000). For this reason, and because Travis concedes in her appellate brief that a copy of the videotape is not necessary for determination of the appeal, we deny Travis’s Motion to Supplement the record.

       We note that nothing in the record indicates that the video showed Travis’s eyes or was otherwise used as a re-enactment of the HGN test administered to Travis. We therefore “decline to apply the evidentiary rule applicable to video re-enactmentst.]’’ (Punctuation omitted.) J. B. Hunt Transport, supra, 236 Ga. App. at 636 (1) (b) (citing Pickren, supra, 269 Ga. at 455 (2)). Thus, the State was not required to show that the videotape was a true and accurate representation of the events sought to be depicted. See id.

       “[A] crime is included in the other where it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the other crime.” (Punctuation and footnote omitted.) Drinkard, supra, 281 Ga. at 213.