author: Mikell, Presiding Judge.

text:
    A12A0868.
    COLEMAN v. THE STATE.
    (731 SE2d 94)
   Mikell, Presiding Judge.

Christopher L. Coleman, convicted of one count of selling marijuana on March 24, 2009 (Count 2), appeals from the trial court’s denial of his amended motion for new trial, contending that the trial court erred in its charge to the jury on chain of custody and in responding to notes from the jury outside of his presence. Finding no error, we affirm.

Viewed in the light favorable to the jury’s verdict, the evidence was that Anthony Carter became a confidential informant after he was caught with drugs by City of Newnan Officer Todd Lengsfeld in 1999. Over the years preceding 2009, Carter worked as a paid informant for Lengsfeld on numerous occasions.

In 2009, Newnan Officer Ronald Benjamin was partnered with Lengsfeld in an operation targeting cocaine dealers in Coweta County. On March 24, 2009, pursuant to department policy, Lengsfeld and Benjamin met with Carter, patted him down to determine that he was not carrying drugs, wired him with a camera and microphone, and gave him $300 to attempt to make a purchase from Coleman. Carter was accompanied by his girlfriend, who was not patted down. Carter and his girlfriend were dropped off by the officers near Coleman’s home, and they walked to his house, where Carter paid $200 for marijuana and $75 for crack cocaine. Carter and his girlfriend then returned to the van containing the officers. The DVD of this transaction recorded by Carter was played for the jury.

The drugs and remaining $25 cash were then given to Lengsfeld in Benjamin’s presence inside the van. In Benjamin’s presence, Lengsfeld bagged the marijuana and cocaine separately, sealed the bags, and Benjamin initialed and dated the bags. Coweta County Sheriff’s Deputy Floyd Boswell tested the material in one of the baggies and concluded that it was marijuana.

1. Coleman contends that the trial court erred in its charge to the jury on chain of custody.

Coleman did not obj ect to the charge on chain of custody requested by the state either at the charge conference or after the jury was charged. When directly asked by the court following the charge for any exceptions, defense counsel replied “[n]o sir. I have none as we speak.” Despite the lack of objection below, the giving of this charge was raised in Coleman’s amended motion for new trial and is enumerated as error on appeal. Pursuant to State v. Kelly, and the mandate of OCGA § 17-8-58 (b), we must review the charge to determine whether it constituted plain error, regardless of preservation below. Kelly sets forth a four-prong test:

First, there must be an error or defect — some sort of deviation from a legal rule —• that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

As noted by our Supreme Court in Kelly, satisfying all of these prongs “is difficult, as it should be.”

Regarding chain of custody, the trial court charged that

with respect to drug evidence, the State is required to establish a chain of custody, that is, the State is required to establish reasonable assurance that the drugs tendered into evidence at trial are the same drugs alleged to have been sold by the defendant. However, the State is not required to foreclose every possibility of tampering and is not required to have every person involved in the chain of custody testify. Any evidence, should you find there to be evidence, or speculation as to the substitution or tampering of the drugs goes to the weight you, the jury, give to the evidence admitted.

(Emphasis supplied.)

The principle contained in the charge is a correct statement of the legal standard required to prove chain of custody. Therefore, Coleman cannot satisfy the first two prongs of the plain error test — that a clear or obvious legal error occurred.

Further, to the extent that Coleman argues that the use of “reasonable assurance” in the charge changed the burden of proof of the state, we disagree. “The portion of the trial court’s charge alleged to be erroneous must be viewed in the context of the charge in its entirety, and the charge given, considered in its entirety, is correct.” The trial court charged the jury on the presumption of innocence and the state’s burden of proof beyond a reasonable doubt.

Therefore, Coleman has failed to show plain error in the charge.

2. Coleman also argues that the trial court erred in responding to notes from the jury outside of his presence.

During jury deliberations, the trial court received and responded to four notes from the jury, after consultation with Coleman’s counsel and the state. In one note, the jury requested to watch the video of the March 24 drug transaction, to which the trial court responded that the jury should continue to deliberate from their own recollection. In another note, the jury requested to hear the audio recording of the March 24 transaction. The trial court, however, was unable to replay any of the media for the jury. Another note asked if there were no verdict, would the jury go home and come back or stay, to which the trial court responded that he intended to stay late that Wednesday evening and, if no decision, have the jury return on Friday due to another commitment of the trial court on Thursday. The final note read “[w]e have guilty on two, one is not changing yet. The 24th, guilty on marijuana. Not guilty on cocaine on the 31st. What if they don’t agree? Need some more water.” The trial court again responded that they should continue their deliberations.

As set out above, counsel for Coleman was present and conferred with the prosecuting counsel and the trial court prior to the court’s response to the jury’s questions. Also, Coleman was present in court and advised by the trial court of the jury’s questions and the court’s response to those questions prior to the jury returning with a verdict. No objection to the trial court’s responses was voiced by Coleman.

Decided August 10, 2012.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Robert W. Mooradian, Assistant District Attorneys, for appellee.

This issue is controlled adversely to Coleman by Lowery v. State, in which our Supreme Court found that

Appellant’s right to be present attaches at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure. Under this standard, a defendant’s right to be present is not violated by his involuntary absence from the jury charge conference at the conclusion of the evidence, or by his involuntary absence from the conference held by a trial court with defense and prosecuting counsel to discuss a response to a deliberating jury’s substantive inquiry.

Therefore, we find no error in the trial court’s denial of Coleman’s amended motion for new trial.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Coleman was found not guilty of selling cocaine on March 31, 2009 (Count 3), and a mistrial was declared on the charge of selling cocaine on March 24, 2009 (Count 1).

       Lengsfeld did not testify at Coleman’s trial.

       290 Ga. 29, 32 (1) (718 SE2d 232) (2011).

       (Citation and punctuation omitted; emphasis in original.) Id. at 33 (2) (a).

       (Citation and punctuation omitted.) Kelly, supra.

        Hurst v. State, 285 Ga. 294, 296 (2) (676 SE2d 165) (2009); Anderson v. State, 247 Ga. 397, 399 (2) (276 SE2d 603) (1981); Morrow v. State, 229 Ga. App. 242, 244 (2) (493 SE2d 616) (1997).

       (Footnote omitted.) Richardson v. State, 253 Ga. App. 555, 558 (6) (560 SE2d 65) (2002).

       282 Ga. 68, 74 (4) (b) (i) (646 SE2d 67) (2007).

       (Citations and punctuation omitted; emphasis supplied.) Id. See also Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998) (defendant waives right to appellate review by failure to voice objection regarding communication with the jury after being informed of it prior to jury’s verdict). Compare Ward v. State, 288 Ga. 641, 645-647 (4) (706 SE2d 430) (2011) (when neither defendant nor counsel present or consulted when juror excused, reversal required); Wells v. State, 297 Ga. App. 153, 158-161 (2) (676 SE2d 821) (2009) (neither defendant nor counsel consulted prior to trial court’s response to jury’s questions and objection made by counsel, reversal required).


source: Caselaw Access Project

license: Public Domain

text:
    A12A0887.
    In the Interest of R. S. et al., Children.
    (731 SE2d 97)
   Mikell, Presiding Judge.

Following a hearing in the Juvenile Court of DeKalb County, the trial court adjudicated R. S. and Q. H. delinquent for burglary. R. S. and Q. H. appeal. Since the juvenile court applied a lesser standard than proof beyond a reasonable doubt in adjudicating R. S. and Q. H. delinquent, we reverse and remand for further proceedings.

Viewed in the light most favorable to the trial court’s adjudication, the record shows that on September 14, 2011, Patras Stringer noticed a group of male youths running from her neighbor’s back yard, carrying a “flat thing” she suspected was a flat-screen television. The youths put the “flat thing” into a truck and drove off. She noticed that two of the youths were wearing blue jeans and white t-shirts. Stringer then called the police, who found evidence of forced entry in the back of the neighbor’s house. The police called the neighbor, Eric Walker, who told them that his house had two flat-screen televisions, a video game console, and two digital cameras. All of those items were missing from the house at the time the police investigated.

Another officer made contact with a blue pickup truck less than a mile away from the burglary. There were six boys in the cab of the truck, including Q. H., and R. S. was found in the bed of the truck. Both R. S. and Q. H. were wearing blue jeans and white t-shirts. A camera taken from Walker’s home was found under the driver’s seat of the pickup truck, but no televisions were found in the truck.

R. S. and Q. H. claim that their adjudication of delinquency cannot stand because the trial court erroneously applied a “clear and convincing” standard to the evidence. We agree.

In order to adjudicate a juvenile delinquent under the Juvenile Code, the trial court must find the juvenile guilty beyond a reasonable doubt. However, at the conclusion of the hearing in this case, the trial court found that there was “clear and convincing evidence that [R. S. and Q. H.] committed the act of burglary.” “Since clear and convincing is a different and lesser standard of proof than beyond a reasonable doubt, the trial court did not apply the correct standard of proof in evaluating the evidence.”

The state concedes that the trial court did not apply the correct standard of proof, but argues that the trial court’s statement was a mere lapsus linguae. Citing to In the Interest of J. 0.,the state argues that the law contemplates the possibility that a judge may apply one standard while mistakenly articulating another. However, in In the Interest of J. O., this Court held that the trial court’s application of the wrong standard of proof did not warrant reversal when the trial court corrected itself in a written order, so that

Decided August 10, 2012.

Demetra D. Ford, Melanie R. Williams, for appellant.

Robert D. James, Jr., District Attorney, Cynthia M. Zurawsky, Assistant District Attorney, for appellee.

[the trial court’s] remark at trial was a mere lapsus linguae and... it knew and had applied the correct standard of proof. [The trial court concluded] that the evidence addressed at the adjudicatory hearing show[ed], beyond a reasonable doubt, that the juvenile did in fact commit the delinquent act.

In the present case, the trial court made no such finding. Although the trial court stated the facts upon which it based its finding, its only statement regarding the standard of proof demonstrates error.

Further, the state’s argument that “we can conclude from the remainder of the trial transcript that the judge applied the correct standard” is without merit. This Court has held that when the trial court remains silent as to the standard of proof, but does recite that it “finds the child committed the alleged acts, it can be assumed the judge complied with [the] statutory requirement as to standard of proof.” However, in the present case, the trial court did not remain silent as to the standard of proof applied.

Based upon the above, we reverse and remand the case for further findings applying the correct standard of proof.

Judgment reversed and case remanded.

Miller and Ray, JJ., concur.

        In the Interest of J. R., 300 Ga. App. 422 (685 SE2d 397) (2009).

       OCGA § 15-11-65 (a). Accord In the Interest of T. S., 211 Ga. App. 46, 46-47 (2) (438 SE2d 159) (1993).

       (Footnote omitted.) In the Interest of A. S., 293 Ga. App. 710, 712 (2) (667 SE2d 701) (2008).

       191 Ga. App. 521 (382 SE2d 214) (1989), overruled on other grounds, In the Interest of T. A. W., 265 Ga. 106, 107 (454 SE2d 134) (1995).

        In the Interest of J. O., supra at 522-523 (2).

       (Punctuation omitted.) Id.

       See In the Interest of A. S., supra at 712-713 (2).

       (Citations omitted.) T. K. v. State of Ga., 126 Ga. App. 269, 276 (3) (190 SE2d 588) (1972) (“our statute in legislatively decreeing such standard of proof in delinquency and unruliness hearings does not require the court to include this as an abracadabra statement in the adjudication order”).

       See In the Interest of A. S., supra at 714 (2); In the Interest of C. T. L., 182 Ga. App. 845, 846 (357 SE2d 298) (1987).


author: Miller, Judge.

text:
    A12A0973.
    SALLYWHITE v. THE STATE.
    (731 SE2d 98)
   Miller, Judge.

Following a bench trial, Tiffany Marie Sallywhite was convicted of simple battery (OCGA § 16-5-23 (a) (1)). Sallywhite appeals from the denial of her motion for new trial, contending that the judgment of conviction was against the weight of the evidence. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses . . . are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999).

So viewed, the trial evidence shows that on December 22, 2008, the victim hosted a birthday party for her teenage daughter at a club venue in McDuffie County. Sallywhite and her accomplice attended the party. While at the party, Sallywhite and her accomplice attempted to smoke marijuana. The victim interceded and told them that smoking was not allowed inside the club venue. Sallywhite and her accomplice then became aggressive and told the victim that the red shirt that she was wearing was the “wrong color” and was not the color associated with their gang. The victim demanded that Sally-white and her accomplice leave the party. Sallywhite’s accomplice then hit the victim in the back of her head, and Sallywhite joined in the physical attack. The victim testified that both Sallywhite and her accomplice “jumped” her and hit her. The victim further testified that she sustained injuries to her face and that her eyeglasses were broken during the attack.

“A person commits the offense of simple battery when he or she . . . [intentionally makes physical contact of an insulting or provoking nature with the person of another[.]” OCGA § 16-5-23 (a) (1). Although Sallywhite denies the charged offense, “[t]he testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8; In the Interest of E. R., 279 Ga. App. 423, 424 (631 SE2d 458) (2006). In this case, the victim’s testimony describing the physical attack and identifying Sallywhite as one of the attackers authorized Sallywhite’s conviction for simple battery. See OCGA § 16-5-23 (a) (1); In the Interest of E. R., supra, 279 Ga. App. at 424.

Decided August 10, 2012.

Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

Sallywhite’s contention that her conviction was against the weight of the evidence is unavailing at this posture. It is true that

OCGA § 5-5-21 authorizes the trial court to grant a new trial “where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” This “general ground” addresses itself to the trial court’s sole discretion and allows the trial judge to sit as a thirteenth juror and weigh the evidence to determine whether to grant a new trial.

(Punctuation omitted.) Delgiudice v. State, 308 Ga. App. 397, 398 (1), n. 1 (707 SE2d 603) (2011). The power to grant a new trial under OCGA § 5-5-21 rests with the trial court alone. See Celestin v. State, 296 Ga. App. 727 (1) (675 SE2d 480) (2009). Notably, the same trial judge who served as the trier of fact and found Sallywhite guilty at the bench trial also reviewed and denied Sallywhite’s motion for new trial on this ground. Unlike the trial court, “[t]his Court does not have the authority to grant a new trial when the evidence preponderates heavily against the verdict. Our review is limited to determining, as a matter of law, whether the record contains sufficient evidence to support the verdict.” (Punctuation and footnotes omitted.) Celestin, supra, 296 Ga. App. at 727 (1); see also Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978) (an appellate court does not have the discretion to grant a new trial based upon the weight of the evidence). As previously stated, the evidence in this case was sufficient to support Sallywhite’s conviction.

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.


text:
    A12A1404.
    MONTFORD v. THE STATE.
    (731 SE2d 91)
   Mikell, Presiding Judge.

After Cozy Blackmon, a one-year-old child, died from hot water burns suffered while in the care of appellant Beauprue Montford, Montford was indicted on charges of felony murder (Counts 1-3), aggravated battery (Count 4), aggravated assault (Count 5), and cruelty to children in the first degree (Count 6). On June 20, 2011, following a hearing at which he was represented by counsel, Montford entered a negotiated guilty plea to Count 1, reduced to involuntary manslaughter, and to Counts 4,5, and 6; and the state nol-prossedthe other two felony murder counts (Counts 2 and 3). Montford was sentenced, in accordance with the state’s recommendation, to a total of 25 years to serve (10 years on Count 1; 20 years on each of Counts 4 and 5, concurrent with Count 1; and 15 years on Count 6, consecutive to Count 1). Montford asked to withdraw his guilty plea in a pro se letter to the court dated June 27, 2011. He was appointed new counsel, who filed a formal motion to withdraw on his behalf. Following a hearing, the motion was denied. Montford now brings this out-of-time appeal, asserting that the trial court erred in accepting his guilty plea because it was not knowingly and voluntarily entered. We find no error and affirm.

Because Montford had already been sentenced when he moved to withdraw his guilty plea, he could withdraw his plea only to correct a manifest injustice, such as would exist, for example, where “the guilty plea was entered involuntarily or without an understanding of the nature of the charges.” On a defendant’s challenge to the validity of his guilty plea, the state bears the burden of showing that the defendant offered his plea “knowingly, intelligently, and voluntarily.” The state may sustain this burden by showing from the record of the guilty plea hearing “that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea.” Because a trial court’s ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court, it will not be disturbed on appellate review absent a manifest abuse of such discretion. Moreover, in ruling on the motion, “the trial court is the final arbiter of all factual disputes raised by the evidence. If evidence supports the trial court’s findings, we must affirm.”

Montford contends that his plea was invalid because he was coerced by his attorney to plead guilty and because he was incompetent to plead due to mental incapacity. Contrary to Montford’s contention, however, the transcript of the guilty plea hearing shows on its face that he entered his plea knowingly, intelligently, and voluntarily.

At the plea hearing, the prosecutor first set forth the factual basis for the charges against Montford, showing that, on April 2, 2010, while alone with Montford, the victim was severely burned by immersion in scalding hot water; and that the child died a few days later from these injuries. Under questioning by the state, Montford then testified that his attorney, Ingrid McGaughey, had explained the charges against him; that he had thoroughly discussed his case with her; and that he was satisfied with her services and advice. He further testified that no promises or threats had been made to influence him to plead guilty; and that he was not under the influence of alcohol or drugs. He was informed of the rights he was waiving by pleading guilty and not standing trial; he testified that he understood; and he waived the relevant constitutional rights. He testified that he understood the maximum sentence he faced for the charges against him; and that he understood the sentencing recommendations made by the state.

When Montford was asked how he pled, he first answered, “I can’t plead guilty.” He and his attorney then had a discussion off the record, after which Montford stated, “I will plead guilty to it.” He further stated that he was, in fact, guilty; and that he wanted to plead guilty. He said that he understood all the questions and that he had given truthful answers; and he signed the guilty plea questionnaire to that effect. In answer to questions from the court, Montford reiterated that he had understood all the earlier proceedings and that he had no questions. He was given opportunity to consult further with his attorney, after which the court accepted his plea.

At the hearing on his motion to withdraw the guilty plea, Montford testified that he had not wanted to plead guilty but he felt “cornered” because his attorney was “pushing” him; and that after he said, “I can’t plead guilty,” his attorney told him that he either had to plead or go to trial, so he “felt obligated” to enter the plea. He further testified that he was not competent to enter a plea because he was delusional and he was under the control of another “stronger personality,” whom he called “Marcus.” On cross-examination, Montford admitted that neither his sister nor his fiancée, the mother of the victim, knew about “Marcus.” Montford explained that “you don’t get Marcus unless ... I just wake up in the bad . . . mood.” Montford testified that he, Montford, answered the questions at the plea hearing, but that “Marcus” signed the plea documents. The record shows, however, that the plea documents were signed by Montford, who could read and write and had graduated from high school. Montford stated that he had seen a psychologist on one occasion, but he could not remember how old he was or the doctor’s name.

McGaughey also testified at the hearing on the motion to withdraw. She had represented clients in hundreds of felony cases over the past 12 years, and she had handled several murder cases. She testified that, prior to his guilty plea, she spoke with Montford about his case numerous times, both in person at the jail and by phone; she investigated his case; and she discussed with him the pros and cons of his case, the state’s evidence against him, and trial strategy. She testified that she explained to Montford the options available to him at the plea hearing; and that she did not force him to take a plea that day. She stated that Montford never indicated to her that he did not understand the proceedings or questions at the plea hearing; and that although he told her he had been diagnosed as bipolar, she could not discover that he had any treatment history. She had never heard of ‘Marcus.” She had worked with numerous clients who had mental problems, but she testified that Montford never exhibited any signs of mental illness or of being unable to understand.

The record in this case, summarized above, amply supports the trial court’s conclusion that Montford’s guilty plea was made voluntarily, knowingly, and intelligently. On appeal, Montford essentially challenges the trial court’s credibility determinations, asking us to reweigh the evidence. This we cannot do. The trial court was authorized to disbelieve Montford’s self-serving testimony and to find that he knowingly, freely, and voluntarily entered his plea. Therefore, based on the record, we conclude that the state met its burden of showing that Montford offered his plea knowingly, intelligently, and voluntarily; and the trial court did not abuse its discretion when it denied Montford’s motion to withdraw his guilty plea.

Decided August 10, 2012.

Gina Bernard, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Montford’s application for discretionary appeal was granted pursuant to OCGA § 5-6-35 (j).

       See Maddox v. State, 278 Ga. 823, 826 (4) (607 SE2d 587) (2005).

       (Citation and punctuation omitted.) Id.

       (Footnote omitted.) Frost v. State, 286 Ga. App. 694 (649 SE2d 878) (2007).

       (Punctuation and footnote omitted.) Hubbard v. State, 301 Ga. App. 388 (687 SE2d 589) (2009). Accord Boykins v. State, 298 Ga. App. 654, 655 (2) (680 SE2d 665) (2009).

        Johnson v. State, 304 Ga. App. 684 (697 SE2d 224) (2010).

       (Footnote omitted.) Trapp v. State, 309 Ga. App. 436-437 (710 SE2d 637) (2011).

       Id. at 438 (1) (“Credibility of witnesses and the weight to he given their testimony is a decision-making power that lies solely with the trier of fact”) (punctuation and footnote omitted).

       See id. (upholding finding that guilty plea was entered knowingly and voluntarily, despite defendant’s later claim that he was “confused” and “not in his right mind”). Accord Boykins, supra at 656 (2) (question of duress in entering guilty plea was question of fact for trial court to resolve).

       See Likely v. State, 293 Ga. App. 484, 487 (667 SE2d 648) (2008) (guilty plea upheld where record contained no evidence, other than defendant’s own self-serving statements at withdrawal hearing, that he labored under any impairment or that he was subject to duress at plea hearing).


author: Barnes, Presiding Judge.

text:
    A12A1142.
    SIMS v. THE STATE.
    (731 SE2d 105)
   Barnes, Presiding Judge.

A Henry County jury found Thomas Lincoln Sims guilty of two counts of child molestation, and the trial court denied his motion for new trial. In the first appearance of this case on appeal, we rejected several claims of error raised by Sims and affirmed his convictions, but remanded the case to the trial court for a hearing on his claims of ineffective assistance of counsel. See Sims v. State, 296 Ga. App. 368, 371-372 (3) (674 SE2d 392) (2009) (“Sims I"). On remand, the trial court, after conducting an evidentiary hearing, concluded that Sims could not succeed on his ineffective assistance claims and thus was not entitled to a new trial on that basis. It is from that order that Sims now appeals. We affirm.

In Sims I, 296 Ga. App. at 368-369, we summarized the record in this case:

Viewed in the light most favorable to the verdict, the record shows that on three separate occasions between January 1,2004, and August 31, 2004, Sims inappropriately touched his ten-year-old stepdaughter B. H. while her mother was at church. B. H. testified that on two occasions, Sims came into her bedroom, wearing only his boxer shorts, and touched her breasts and vagina on top of her pajamas. The third time, Sims touched B. H.’s breasts and vagina under her clothing, and exposed himself to her. B. H. testified that the three incidents occurred at the home she shared with her mother, brother, and Sims, in Locust Grove, Henry County. B. H. also testified about two other encounters with Sims. On one occasion, B. H. was sitting on Sims’s lap driving his car down a dirt road when Sims unbuttoned her pants and “started messing with [the] lower part of [her] body.” On the other occasion, Sims took B. H. to a “bootleg house” in Spalding County, removed her clothing, and tried unsuccessfully to put his penis in her vagina. B. H. also described a sixth encounter with Sims, which occurred at her grandmother’s home in Lithonia, DeKalb County. B. H. told her mother[ ] . . . about the incidents and [her mother] called the police. When [B. H.’s mother] questioned Sims about the incidents, Sims told her that he did it and then turned himself in to police.
As similar transaction evidence, the [S]tate introduced the testimony of Sims’s biological daughter, S. S., who testified that on more than one occasion in 1991, when she was eight or nine years old, Sims touched her vagina with his hands and penis, and had intercourse with her. S. S. testified that she contracted a sexually transmitted disease from her father. Sims pled guilty to one count of child molestation involving S. S. and was sentenced to twelve years (the [S] tate nolle prossed a charge of aggravated child molestation).

(Footnote omitted.)

In the current appeal, Sims maintains that the trial court should have granted his motion for new trial because his trial counsel rendered ineffective assistance in several respects. To succeed on an ineffective assistance of counsel claim under the two-pronged test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), “[Sims] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” Johnson v. State, 281 Ga. 770, 771 (2) (642 SE2d 827) (2007) . If Sims fails to establish either prong of the Strickland test, he cannot prove ineffective assistance, and we need not analyze the other prong. Id. at 771-772 (2). In reviewing a trial court’s ruling on an ineffective assistance claim, “[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.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003). Mindful of this framework, we turn to Sims’s specific claims of ineffective assistance.

1. Sims first contends that his trial counsel was ineffective for failing to request a contemporaneous limiting instruction on similar transaction evidence when the State introduced the testimony of his biological daughter, S. S., who testified that Sims had molested her when she was eight or nine years old. We disagree.

Sims’s trial counsel testified at the hearing on the motion for new trial that he did not ask for a contemporaneous limiting instruction on similar transaction evidence because he wanted to “try to draw the least amount of attention to it as possible.” “An attorney’s decision not to seek a limiting instruction to avoid drawing attention to the subject of the instruction is a matter of trial strategy that falls within the range of reasonable professional conduct when, as here, it is a reasonable decision.” Ford v. State, 290 Ga. 45, 49 (5) (d) (717 SE2d 464) (2011). Hence, Sims cannot show that his counsel was deficient for declining to ask for a contemporaneous limiting instruction.

Furthermore, the trial court gave a limiting instruction on similar transaction evidence in its final charge to the jury. Thus, even if counsel had been deficient in failing to request a contemporaneous instruction, Sims cannot show that but for this deficiency, there is a reasonable probability that the trial result would have been different. See Breazeale v. State, 290 Ga. App. 632, 634 (3) (660 SE2d 376) (2008) ; Copeland v. State, 276 Ga. App. 834, 838 (2) (b) (625 SE2d 100) (2005).

Sims contends that the prejudice caused by his trial counsel’s failure to request a contemporaneous limiting instruction was greater than in cases like Copeland, given that S. S. was called as the State’s first witness, and further details about the similar transaction were ; elicited from a police investigator during cross-examination. We are unpersuaded. The jury was fully apprised of the evidentiary principles applicable to similar transaction evidence at the conclusion of the case immediately before its deliberations, and this was sufficient to cure any potential confusion caused by trial counsel’s failure to obtain a limiting instruction when S. S. and the investigator testified about the similar transaction. It follows that Sims cannot prove his claim of ineffective assistance.

2. Sims next argues that his trial counsel was ineffective in his cross-examination of the police investigator assigned to the case. According to Sims, his counsel opened the door during cross-examination for the investigator to emphasize how Sims’s prior molestation of S. S. was similar to and corroborated B. H.’s allegations of molestation. Sims asserts that the investigator’s testimony elicited by his trial counsel was highly damaging because it amplified for the jury the similarity between the incidents of molestation “over and above” what had been shown through the testimony of S. S.

At the hearing on the motion for new trial, Sims’s trial counsel testified that the questions he posed to the investigator on cross-examination were a matter of trial strategy. When the investigator testified, the similar transaction evidence had already been introduced through the testimony of S. S., and trial counsel knew that he had to address it and try to “neutralize” it in some manner. To that end, counsel testified that his questioning of the investigator was aimed at showing that “just because there [is] a similar transaction doesn’t mean that Mr. Sims is guilty in this case.” And while the investigator clearly was resistant to trial counsel’s strategy of minimizing any link between the similar transaction and the current charges, trial counsel did succeed in getting the investigator to admit that the existence of the similar transaction did not mean that B. H.’s allegations had to be true.

Counsel further testified that the questions he posed to the investigator were aimed at showing that the police thought Sims was guilty of the charges in this case simply because of his prior molestation conviction, which had led to the investigation not being “as thorough ... as it should have been.” Although trial counsel’s questioning did lead the investigator to respond defensively by highlighting the similarities between the molestations of S. S. and B. H., his questioning also led the investigator to concede that his interview of B. H. was performed with the child’s mother in the room; that his interview of B. H. was not audio or video recorded; that he did not prepare a contemporaneous written report of his interview of B. H.; that no search was performed of the house in Henry County where the molestation of B. H. allegedly occurred; and that no “proper forensic interview” by a trained interviewer was performed.

Under these circumstances, trial counsel’s cross-examination of the investigator did not constitute deficient performance.

The scope of cross-examination is grounded in trial tactics and strategy. Trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them. Trial counsel’s testimony provides some evidence that his decision about what questions to ask on cross-examination of the [investigator] was a matter of reasonable trial strategy. [Sims] failed to rebut the presumption that this strategy was reasonable, and accordingly he failed to support his claim of ineffective assistance.

(Citations and punctuation omitted.) Martinez v. State, 303 Ga. App. 166, 174 (4) (b) (692 SE2d 766) (2010).

3. Sims also contends that his trial counsel was ineffective for failing to introduce into evidence the written report of the police officer who was dispatched to B. H.’s home after her mother called the police about the molestation. The narrative portion of the report summarized the officer’s interview of B. H. while her grandmother was present. According to Sims, his counsel should have introduced the police report into evidence because it contained statements of B. H. about the nature of the molestation and where it occurred that were inconsistent with her testimony at trial.

Sims’s argument is without merit. Trial counsel cross-examined the police officer about his interview of B. H. and was able to get B. H.’s prior inconsistent statements before the jury in that manner without introducing the report itself into evidence. Furthermore, it is not necessary to introduce a witness’s prior inconsistent statement into evidence before using it for impeachment. See Holsey v. State, 281 Ga. 177, 179 (2) (637 SE2d 32) (2006). And under the continuing witness rule, the narrative portion of the police report could not have gone out with the jury during its deliberations. See Broadnax Woodland v. State, 265 Ga. App. 669, 670 (1) (595 SE2d 350) (2004); Kent v. State, 245 Ga. App. 531, 533 (3) (538 SE2d 185) (2000). Accordingly, trial counsel was not deficient for declining to seek to introduce the police report into evidence, and Sims cannot demonstrate that his counsel rendered ineffective assistance.

4. Lastly, Sims asserts that his trial counsel was ineffective for failing to introduce into evidence the affidavit of the police investigator that was part of his application for an arrest warrant. Sims maintains that his trial counsel should have introduced the affidavit into evidence because it reflected that B. H.’s initial allegations of molestation differed from what she later claimed at trial. But Sims cannot show that his trial counsel was deficient, given that his counsel cross-examined the investigator about the substance of the affidavit, and, in doing so, placed the inconsistencies in B. H.’s allegations before the jury without attempting to introduce the affidavit itself into evidence. For the same reasons discussed supra in Division 3, Sims is unable to succeed on his final ineffective assistance claim, and the trial court committed no error in denying his motion for new trial.

Decided August 14, 2012.

William F. Rucker, for appellant.

Tommy K. Floyd, District Attorney, Atha H. Pryor, David E. Slemons, Assistant District Attorneys, for appellee.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Sims was charged with three counts of child molestation, but the State requested and obtained entry of a nolle prosequi on one of the counts.

       In State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010), our Supreme Court disapproved of this Court’s articulation, in Sims I and other cases, of the “plain error rule” in the context of an alleged violation of OCGA § 17-8-57. That statute addresses illegal comments about the evidence made by the trial court in a criminal proceeding, and it has no bearing on any of Sims’s ineffective assistance claims. Gardner, therefore, does not affect the instant appeal.


author: McFadden, Judge.

text:
    A12A1263.
    DOUGLAS v. THE STATE.
    (731 SE2d 109)
   McFadden, Judge.

Troy Douglas appeals the denial of his motion to withdraw his guilty plea to possession of cocaine with intent to distribute. Because, as the state concedes, the record does not reflect that Douglas knowingly waived his right to counsel during the plea withdrawal proceedings, we reverse the order denying his motion and remand the case for further proceedings.

Douglas was represented by counsel when he entered his guilty plea. Twenty-four days later, he filed a pro se motion to withdraw his guilty plea, asserting that he had received ineffective assistance of counsel. Without addressing the merits of Douglas’s motion, the trial court denied the motion on the ground that Douglas — who was proceeding pro se and was presumably incarcerated at the time — failed to appear at the hearing. Douglas appealed.

1. In Fortson v. State, 272 Ga. 457 (532 SE2d 102) (2000), the Supreme Court of Georgia held that a proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution, id. at 459 (1), and that “the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel.” Id. at 460 (1). The court further held that the trial court has an obligation to provide counsel or to obtain a constitutionally valid waiver of counsel from a defendant who seeks to withdraw his guilty plea. Id. at 459 (1).

Decided August 14, 2012.

Mark A. Yurachek, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

Because [Douglas] was not appointed counsel for his motion to withdraw his plea, the record does not reveal that the court informed him of his right to counsel, and no waiver of counsel appears in the record, “we reverse and remand this case to the trial court for a re-hearing on [Douglas’s] motion to withdraw his guilty plea to be conducted in conformity with this opinion.” Fortson, supra, 272 Ga. at 461 (2); Kennedy v. State, 267 Ga. App. 314, 314-315 (599 SE2d 290) (2004).

Ford v. State, 312 Ga. App. 80, 81 (1) (717 SE2d 676) (2011).

2. Douglas’s remaining enumerations of error are rendered moot by our holding in Division 1. Ford, 312 Ga. App. at 81 (2).

Judgment reversed and case remanded.

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


text:
    A12A1539.
    BOOKER v. GEORGIA DEPARTMENT OF HUMAN RESOURCES.
    (731 SE2d 110)
   McFadden, Judge.

Pursuant to a request filed by the Georgia Department of Human Resources, the trial court held that Serbrena Booker’s son was emancipated because he had reached the age of majority and was not enrolled in and attending a secondary school; thus, the court held, under OCGA § 19-6-15 (e) the son’s father no longer was obligated to pay child support. Because Booker has failed to comply with the discretionary appeal procedures of OCGA § 5-6-35, but instead has filed a direct appeal from this ruling, we must dismiss the appeal.

“OCGA § 5-6-35 (a) (2) provides, without exception, that appeals in ‘domestic relations cases’ must be brought by application for discretionary appeal.” Walker v. Estate of May, 279 Ga. 652, 653 (1) (619 SE2d 679) (2005). This is a domestic relations case subject to review only by application because its underlying subject matter is a father’s obligation to provide child support for his son. See Camp v. Camp, 247 Ga. 533 (277 SE2d 55) (1981); Davis v. Welch, 205 Ga. App. 462, 463 (422 SE2d 323) (1992). This case falls within OCGA § 5-6-35 (a) (2) even though it was initiated by the Department of Human Resources. See Fitzgerald v. Dept. of Human Resources, 231 Ga. App. 129 (497 SE2d 659) (1998) (appeal from order modifying child support obligation in case initiated by Department of Human Resources must be brought as discretionary appeal under OCGA § 5-6-35 (a) (2), among other subsections).

Decided August 14, 2012

Serbrena Booker, pro se.

Samuel S. Olens, Attorney General, Mark J. Cicero, Assistant Attorney General, Randy J. Comins, for appellee.

“Compliance with the discretionary appeals procedure is jurisdictional. Therefore, [Booker’s] failure to follow the discretionary appeal procedures of OCGA § 5-6-35 deprives this Court of jurisdiction, and [her] appeal must be dismissed.” (Citations and punctuation omitted.) Fitzgerald, 231 Ga. App. at 129-130.

Appeal dismissed.

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


text:
    A12A0967.
    KEGLER v. THE STATE.
    (731 SE2d 111)
   Barnes, Presiding Judge.

After the police executed a search warrant at a residence and found drugs and drug paraphernalia there, Clarence Edward Kegler was charged with and convicted of trafficking in cocaine and possession of marijuana with intent to distribute. The trial court denied his motion for new trial, leading to this appeal. Kegler challenges the sufficiency of the evidence and contends that the trial court erred by allowing the State’s lead investigator to remain in the courtroom after the rule of sequestration had been invoked, by failing to give the pattern charge on leniency, and by failing to charge the jury on the need for corroboration of an accomplice’s testimony. For the reasons discussed below, we affirm.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury’s verdict. See Jones v. State, 283 Ga. App. 631 (642 SE2d 331) (2007). So viewed, the evidence showed that on April 21, 2006, sheriffs deputies executed a search warrant at a residence in Early County. In addition to the search of the residence, the warrant authorized the deputies to search Kegler and two of his cousins.

Upon entry, the deputies found two bags of suspected marijuana and a bag of suspected cocaine on the kitchen counter near the microwave. They also found a set of digital scales and several different sizes of plastic bags in the kitchen near the drugs. The two bags of suspected marijuana tested positive and weighed 10.7 ounces, and the bag of suspected cocaine tested positive and weighed 42.47 grams, with a purity of 32.5 percent. The digital scales contained residue that tested positive for the presence of cocaine.

The residence was owned by Emmanuel Kegler, one of Kegler’s cousins, but Kegler was there when the search occurred. When deputies entered the residence, Kegler ran out the back door but was apprehended by a sheriff’s deputy. The deputy searched Kegler and noted that he had a large sum of cash on his person, but the deputy did not seize the cash and count it because he wanted to continue assisting in the search of the residence.

Emmanuel was arrested inside the residence and had $435 on his person. Two other individuals, Shawn Often and Travis Often, also were inside the residence and were arrested. Another individual, Dontavious Ogden, was in the front yard when the deputies arrived, and he threw down a sack of marijuana that had been in his pocket and began to run. A deputy apprehended Ogden and placed him under arrest.

Following his arrest, Ogden was placed in a patrol car with Kegler. While the two were in the patrol car, Kegler passed to Ogden the large sum of cash that had been on his person when he was originally apprehended outside the residence. After the two were transported to jail, the sheriff searched Ogden and found the cash on him. The seized cash totaled $1,847. Ogden had only approximately $175 in his pockets before Kegler passed him the cash in the patrol car.

Emmanuel and Kegler were jointly indicted on charges of trafficking in cocaine and possession of marijuana with intent to distribute. Emmanuel also was charged with possession of tools for the commission of a crime. At the ensuing jury trial, the State called multiple witnesses, including the other individuals arrested at the residence (Shawn Often, Travis Often, and Dontavious Ogden), the lead police investigator, the sheriff and several of his deputies who aided in the search, the deputy who tested and weighed the marijuana, and the forensic chemist who tested and weighed the cocaine. Furthermore, during the trial, Emmanuel entered a “blind” or non-negotiated guilty plea to all charges, after which he was called to testify by the prosecution.

Emmanuel testified that on the day the search occurred, Kegler had brought over the two large bags of marijuana and the digital scales, which later tested positive for cocaine residue, to his residence and placed them in the kitchen. According to Emmanuel, he and Kegler picked stems out of the marijuana in the kitchen, and he admitted that the scales were for weighing the marijuana and that they were preparing to sell it.

Emmanuel further testified that one of his other cousins had brought the bag of cocaine to the residence that day and had placed it in the microwave in the kitchen. Emmanuel confirmed that Kegler was at the residence when the other cousin arrived with the bag of cocaine and was present when Emmanuel and the cousin talked about the cocaine.

During the testimony of Shawn Often, the prosecution impeached him with a written statement that he made after his arrest. In the statement, Often stated that when the deputies later entered the residence, Kegler pulled the bag of cocaine out of the microwave before he ran out the back door. Deputies subsequently found the cocaine under the two bags of marijuana on the kitchen counter next to the microwave.

The lead investigator was qualified to testify as an expert on narcotics investigations and the sale or distribution of cocaine and marijuana. He testified that the ten ounces of marijuana seized from the residence would have cost between $600 and $800, and based on his training and experience, was consistent with an amount used for distribution. He further testified that the approximately 42 grams of seized cocaine would have cost around $1,350, and based on his training and experience, was consistent with an amount used for distribution.

1. Kegler contends that the evidence was insufficient to support his convictions for trafficking in cocaine and possession of marijuana with intent to distribute. In reviewing the sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), our role is limited to determining whether the evidence, construed in the light most favorable to the verdict, enabled a rational trier of fact to have found the essential elements of the crime beyond a reasonable doubt. Bryant v. State, 309 Ga. App. 649 (1) (710 SE2d 854) (2011). “In answering that question, we do not re-weigh the evidence or resolve conflicts in testimony, but rather defer to the jury’s assessment of the weight and credibility of the evidence.” (Citation and punctuation omitted.) Walker v. State, 314 Ga. App. 714, 716 (1) (725 SE2d 771) (2012).

(a) With respect to his conviction for trafficking in cocaine, Kegler’s sole argument is that the State failed to show that he possessed the bag of cocaine found in the kitchen of the residence owned by Emmanuel. According to Kegler, the evidence showed that another one of his cousins brought the cocaine to Emmanuel’s residence, and he emphasizes that he did not have any cocaine on him at the time of his arrest. Kegler also maintains that he never discussed the cocaine, never touched it, and never “had anything to do with [it].”

OCGA § 16-13-31 (a) (1) provides that “[a]ny person . . . who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine... commits the felony offense of trafficking in cocainef.]”

Possession of contraband may be joint or exclusive, and actual or constructive. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.

(Citation omitted.) White v. State, 313 Ga. App. 605, 606 (1) (722 SE2d 198) (2012).

Furthermore, any person “concerned in the commission of a crime” is a party to the crime and canbe convicted of it. OCGA § 16-2-20 (a). “One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime.” (Footnote omitted.) Stevens v. State, 245 Ga. App. 237, 241 (7) (537 SE2d 688) (2000). See OCGA § 16-2-20 (b).

Applying these principles to the case-at-hand, we conclude that the trial evidence, when viewed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find Kegler guilty beyond a reasonable doubt of trafficking in cocaine. Jackson, 443 U. S. at 319 (III) (B). The State presented evidence that even if Kegler did not bring the bag of cocaine over to Emmanuel’s residence, he nevertheless possessed it and was a party to the crime of trafficking in cocaine. Specifically, there was testimony showing that the digital scales containing cocaine residue belonged to Kegler; that Kegler was present when Emmanuel and his other cousin discussed the cocaine; that Kegler got the bag of cocaine out of the microwave before he fled out of the back door of the residence in an effort to evade the police; and that Kegler had a large amount of cash on his person that he attempted to discard by passing it to Ogden in the police car.

Taken together, this testimony clearly was sufficient to show that Kegler possessed the cocaine and was concerned in the commission of the crime. See Muckle v. State, 307 Ga. App. 634, 637 (1) (a) (705 SE2d 721) (2011) (attempting to discard evidence can serve as circumstantial evidence of guilt); Sims v. State, 306 Ga. App. 68, 70 (1) (701 SE2d 534) (2010) (“A person’s involvement in the commission of a crime may be inferred from that person’s presence, companionship, and conduct before, during and after the crime.”) (citation and punctuation omitted); Collins v. State, 283 Ga. App. 188, 191 (1) (a) (641 SE2d 208) (2007) (flight can serve as circumstantial evidence of guilt). Kegler’s challenge to his conviction for trafficking in cocaine, therefore, is without merit.

(b) With respect to his conviction for possession of marijuana with intent to distribute, Kegler’s sole argument is that the evidence was insufficient because the testimony of his accomplice, Emmanuel, was not corroborated.

Although [Kegler] is correct that the uncorroborated testimony of an accomplice is not sufficient in and of itself to support a felony conviction, [see OCGA § 24-4-8,] it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.

(Citation omitted.) Williamson v. State, 308 Ga. App. 473, 477 (1) (708 SE2d 57) (2011).

Emmanuel testified that Kegler brought two bags of marijuana to his residence along with digital scales, and that Kegler assisted in picking the stems out of the marijuana. Consistent with Emmanuel’s testimony, deputies later found two bags of marijuana and digital scales near the microwave on the kitchen counter of the residence, as well as stems that appeared to have been picked from the marijuana. Moreover, Shawn Often saw Kegler beside the microwave in the kitchen where the marijuana, scales, and marijuana stems were located in plain view, and he also saw Kegler flee out of the back door of the kitchen when deputies arrived at the residence. A deputy further testified that he discovered Kegler trying to flee from the residence and was able to apprehend him.

The testimony of Shawn Often and the deputies who participated in the execution of the search warrant served to corroborate Emmanuel’s testimony. See Williamson, 308 Ga. App. at 478 (1) (physical evidence found at scene corroborated accomplice’s testimony); Ellison v. State, 265 Ga. App. 446, 447-448 (1) (594 SE2d 675) (2004) (flight from residence containing marijuana in many rooms showed consciousness of guilt of possession of marijuana and sufficiently corroborated accomplice’s testimony); Solomon v. State, 161 Ga. App. 566 (288 SE2d 342) (1982) (concluding that defendant’s “timely presence at the scene of the crime and the circumstances of his discovery there [provided] sufficient corroboration of the accomplice’s testimony”). Hence, we conclude that the combined evidence was sufficient to enable a rational trier of fact to find Kegler guilty beyond a reasonable doubt of possession of marijuana with intent to distribute. Jackson, 443 U. S. at 319 (III) (B).

2. Kegler maintains that the trial court erred by allowing the State’s lead investigator to remain in the courtroom after the rule of sequestration had been invoked and to testify after the other prosecution witnesses. “However, it is well within the trial court’s discretion to permit the State’s lead investigator to remain in the courtroom despite invocation of the rule of sequestration where the State shows his presence is necessary for the orderly presentation of evidence.” (Citation and punctuation omitted.) Mitchell v. State, 290 Ga. 490, 491 (3) (722 SE2d 705) (2012). This is true, even if the investigator is not the first witness called to the stand. See White v. State, 253 Ga. 106, 110 (5) (317 SE2d 196) (1984); Andrews v. State, 307 Ga. App. 557, 560 (2) (b) (705 SE2d 319) (2011).

Here, the prosecution requested that the lead investigator be permitted to remain in the courtroom due to the high volume of exhibits in the case and the need “for an orderly presentation of the evidence.” The reasons stated by the prosecution for the need of the lead investigator’s presence in the courtroom were sufficient for the trial court to exempt the investigator from the rule of sequestration. See Mitchell, 290 Ga. at 491 (3) (trial court did not abuse discretion in permitting State’s lead investigator to remain in courtroom, where investigator was needed for orderly presentation of multiple exhibits and witnesses); Dockery v. State, 287 Ga. 275, 276 (3) (695 SE2d 599) (2010) (given the volume of exhibits and testimony, and significance of the investigator’s role in the case, trial court did not abuse its discretion in allowing investigator to remain in courtroom); Thorpe v. State, 285 Ga. 604, 606 (2) (678 SE2d 913) (2009) (trial court acted within its discretion in allowing lead detective to remain in courtroom, given the large number of exhibits and witnesses).

3. Kegler further argues that the trial court erred by failing to give the full pattern jury charge on leniency. The pattern charge provides:

In assessing the credibility of a witness, you may consider any possible motive in testifying, if shown. In that regard you are authorized to consider any possible pending prosecutions, negotiated pleas, grants of immunity or leniency, or similar matters. You alone shall decide the believability of the witnesses.

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.31.80. The trial court instead charged the jury:

In assessing the credibility of a witness, you may consider any possible motive for testifying, if shown. In that regard, you are authorized to consider any possible leniency or similar matters. You alone shall decide the believability of the witnesses.

According to Kegler, the trial court’s charge was incomplete and erroneous because it omitted the language from the pattern charge referring to “any possible pending prosecutions, negotiated pleas, [or] grants of immunity.” Kegler maintains that the trial court should not have omitted this language because, he contends, there was testimony reflecting that three of the testifying witnesses — Shawn Often, Travis Often, and Dontavious Ogden — were shown leniency by the State with respect to charges that had been brought against them relating to this case.

Kegler, however, did not object to the charge as given, even though he was required to do so under the law in effect at the time of his trial. See OCGA § 17-8-58 (a) (“Any party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.”). Consequently, we review Kegler’s enumeration of error only to determine whether the trial court’s leniency charge constituted plain error. See OCGA § 17-8-58 (b) (“Failure to object. . . shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties----”); State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011). Reversal for plain error is required only if the following four conditions are met: “the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). See Kelly, 290 Ga. at 33 (2) (a). And “[¡jury instructions must be read and considered as a whole when determining whether the charges contained error.” Guajardo v. State, 290 Ga. 172, 176 (4) (718 SE2d 292) (2011).

Here, the trial court did in fact charge on the basic principle that the jury could consider any leniency shown to a witness in assessing his or her credibility. The trial court further charged the jury that it was to determine the credibility and believability of witnesses; that in passing upon credibility, it was authorized to consider a witness’s interest in the case; and that it could assess the witness’s personal credibility. Considered as a whole, the trial court’s charge sufficiently apprised the jury of the negative inferences it might draw from any forms of leniency granted to witnesses by the State in return for their testimony. Accordingly, the trial court’s omission from its leniency charge of the language referring to “any possible pending prosecutions, negotiated pleas, [or] grants of immunity” was not obviously erroneous and did not affect the outcome of the trial proceedings, and, as a result, there was no plain error. See Allen v. State, 290 Ga. 743, 746 (3) (723 SE2d 684) (2012) (omitted jury charge did not affect outcome of proceedings and thus did not constitute plain error, in light of charges when read as a whole); Guillen v. State, 275 Ga. App. 316, 318 (1) (620 SE2d 518) (2005) (trial court’s refusal to give defendant’s proposed charge on immunity and leniency granted to a witness was not error because “the principle of the proposed charge was covered in the general charge”).

Decided August 15, 2012.

Charles E. Rooks, for appellant.

T. Craig Earnest, District Attorney, for appellee.

4. Kegler also contends that the trial court erred by failing to charge the jury on the need for corroboration of an accomplice’s testimony. But, [a]s “a rule, it is not error to fail to give a charge on corroboration of accomplices where the State relies upon other evidence apart from the accomplice’s testimony.” (Punctuation and footnote omitted.) Laing v. State, 304 Ga. App. 15, 18 (2) (695 SE2d 363) (2010). See Cochran v. State, 300 Ga. App. 92, 97 (3) (684 SE2d 136) (2009). As discussed supra in Division 1 (b), the State did not rely solely upon Emmanuel’s testimony to show Kegler’s guilt, and the trial court thus committed no error in failing to give the charge on corroboration of accomplice testimony. See id.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Emmanuel shared defendant Kegler’s last name and thus will be referred to hereinafter by his first name for ease of reference.

       A guilty plea is nonnegotiated when there is no agreement between the State and the defendant with regard to the sentence. See Davis v. State, 317 Ga. App. 157 (1), n. 4 (730 SE2d 30) (2012).

       In a separate enumeration of error, Kegler contends that the trial court erred in failing to charge the jury that a witness could he impeached with a prior felony conviction. But the record reflects that the trial court did in fact charge the jury on this mode of impeachment. Consequently, Kegler’s contention is without merit.

       OCGA § 17-8-58 (a) applies to all trials occurring on or after July 1, 2007. See Ga. Laws 2007, p. 595, § 5. Kegler’s trial occurred in September 2007.


text:
    A12A0990.
    STOKES v. THE STATE.
    (731 SE2d 118)
   Barnes, Presiding Judge.

Ritchea Rayan Stokes appeals his conviction for possession of cocaine and possession with intent to distribute marijuana. Stokes waived his right to a jury trial and after a bench trial was sentenced to six years, with thirty days to serve. Following the denial of his motion for new trial, Stokes contends that the verdict was not supported by sufficient evidence. Finding no error, we affirm.

The facts of the case, considered in the light most favorable to the verdict, are as follows. Stokes was pulled over for failing to dim the headlights on his car in response to oncoming traffic. The police officer who initiated the traffic stop had a drug detection dog with him at the time of the stop. Stokes was driving, and there was one passenger in the car. As the officer approached the car, he smelled “a strong odor of marijuana emitting from the vehicle.” The officer then walked the drug dog around the car and received a positive alert from the dog, indicating drugs were located in the car. Backup officers arrived at the scene just after the dog finished. The officer instructed Stokes to exit the car and noticed that his pupils were dilated and he was unsteady on his feet. The officer also found a crack pipe in Stokes’ shoe, and Stokes admitted to smoking crack earlier in the day. Around this time, the officer monitoring the passenger saw two large bags of marijuana stuffed in his pants. Then the officers took both Stokes and his passenger into custody. When the passenger arrived at the police station, an officer searched him and found a rock of crack cocaine in his shoe.

Once Stokes was back at the police station, an officer advised him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), and began to question him. Stokes admitted the crack rock in the passenger’s shoe was payment for driving the passenger to pick up the 18.7 ounces of marijuana. During the bench trial, an officer testified that the marijuana found on the passenger was “well past” an amount that would normally be considered for personal use. However, no packaging materials, money, ledgers, or receipts were found on Stokes, the passenger, or in the car.

The standard of review in a case when the appellant contends the evidence was insufficient to support the verdict is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and emphasis omitted.) Little v. State, 230 Ga. App. 803, 804 (1) (498 SE2d 284) (1998). Moreover, “[t]his Court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility.” Id.

Stokes contends that the evidence presented at trial was not sufficient to support the verdict. “In a bench trial, the trial court sits as the trier of fact and its findings cannot be set aside unless they are clearly erroneous.” Crossley v. State, 261 Ga. App. 250, 253 (582 SE2d 204) (2003). “In Georgia, it is well-settled that the clearly erroneous standard for reviewing findings of fact is equivalent to the highly deferential any evidence test.” (Punctuation omitted.) Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012). Thus, the clearly erroneous test is deferential to the finder of fact who, in this case, was the trial judge.

1. Regarding Stokes’ conviction for possession of cocaine under OCGA § 16-13-30 (a), he correctly argues that he did not have actual possession of the cocaine. “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.” Warren v. State, 254 Ga. App. 52, 54 (1) (561 SE2d 190) (2002). Stokes did not have direct physical control over the cocaine because it was found in the clothing of his passenger.

Nevertheless, the evidence presented was sufficient to establish constructive possession of the crack cocaine. “A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” Lockwood v. State, 257 Ga. 796, 797 (364 SE2d 574) (1988). Moreover, if there is “slight evidence of access, power, and intention to exercise control or dominion over the cocaine ... the question of fact regarding constructive possession remains within the domain of the trier of fact.” Evans v. State, 185 Ga. App. 805, 806 (366 SE2d 165) (1988). Stokes admitted during questioning that the cocaine in the passenger’s shoe was Stokes’ payment for driving, which constitutes at least slight evidence indicating Stokes had access, power, and intention to exercise dominion over the crack. Therefore, we cannot say that the trial court’s decision was clearly erroneous.

2. The evidence presented at trial was also sufficient to establish that Stokes possessed the marijuana with intent to distribute under a conspiracy theory.

To prove conspiracy, two elements must be shown: an agreement and an act in furtherance of it. The [S]tate need not prove an express agreement between the co-conspirators; it only must show that two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective.

(Punctuation and footnote omitted.) Williamson v. State, 300 Ga.App. 538, 547 (5) (685 SE2d 784) (2009). Furthermore,

Conspiracy may be shown through circumstantial evidence. The conspiracy may be inferred from the nature of the acts done, the relation of the parties, the interest of the alleged conspirators and other circumstances, such as presence, companionship and conduct before and after the commission of the alleged offense.

(Footnote omitted.) Id. at 547-548.

Decided August 15, 2012.

Sara E. Meyers, for appellant.

Dennis C. Sanders, District Attorney, William P.Doupé, Assistant District Attorney, for appellee.

Stokes admitted that he agreed to drive his passenger to pick up the marijuana in exchange for the crack cocaine. This demonstrates an agreement between Stokes and his passenger, thus satisfying the first element of conspiracy.

The second element of conspiracy is an act in furtherance of the agreement, done by any party to the conspiracy OCGA § 16-4-8. Both Stokes and his passenger committed acts in furtherance of the agreement: Stokes did in fact drive his passenger to pick up the marijuana, and his passenger did in fact acquire the marijuana. Thus, the second element of conspiracy is satisfied.

Lastly, Stokes contends the evidence presented at trial was insufficient to establish intent to distribute the marijuana.

The [S]tate may show intent to distribute in many ways, including expert testimony that the amount of contraband possessed was inconsistent with personal use, evidence showing the manner of packaging, and the possession of certain amounts or denominations of currency

Helton v. State, 271 Ga. App. 272, 275 (1) (b) (609 SE2d 200) (2005). Here, one of the officers explicitly opined that, based on his experience and training, the amount of marijuana found on the passenger exceeded an amount that is consistent with personal use. As stated, expert testimony may be sufficient to show intent to distribute. Thus, the fact that the car did not contain any money, ledgers, or packaging materials is not determinative. Under the clearly erroneous standard of review, and after viewing the facts in the light most favorable to the finder of fact, the evidence was sufficient to support a finding of intent to distribute.

The evidence presented at trial was sufficient to establish all the material elements of possession of cocaine and possession of marijuana with intent to distribute. Therefore, we affirm the trial court.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Although Stokes was also convicted of possession of marijuana, driving under the influence (controlled substance), driving under the influence (less safe), and failure to carry a license, he has not contested those convictions on appeal.

       See also OCGA § 16-4-8.


author: Ellington, Chief Judge.

text:
    A10A1452.
    KESTERSON et al. v. JARRETT et al.
    (731 SE2d 129)
    Decided August 16, 2012.

      Parks, Chesin & Walbert, David F. Walbert, Charles A. Mathis, Jr., for appellants.

      Forrester & Brim, Weymon H. Forrester, Carlock, Copeland & Stair, Thomas S. Carlock, Eric J. Frisch, Begnaud & Marshall, Andrew H. Marshall, for appellees.
   Ellington, Chief Judge.

The Supreme Court of Georgia reversed our decision in Division 1 of Kesterson v. Jarrett, 307 Ga. App. 244 (704 SE2d 878) (2010), holding that Kyla Kesterson was improperly excluded from the courtroom during almost all of her trial, and that such constituted reversible error demanding a new trial. Kesterson v. Jarrett, 291 Ga. 380 (728 SE2d 557) (2012). Accordingly, our ruling as to that Division is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed and case remanded.

Doyle, P. J., and Andrews, J., concur.


author: Boggs, Judge.

text:
    A12A0918.
    BUSH v. THE STATE.
    (731 SE2d 121)
   Boggs, Judge.

Antione Lamar Bush was indicted for armed robbery, two counts of false imprisonment, four counts of aggravated assault, and possession of a firearm during the commission of a felony. One count of false imprisonment was dismissed by the State, and a jury acquitted Bush on two counts of aggravated assault but found him guilty on all remaining charges. His amended motion for new trial was denied, and he appeals, alleging insufficiency of evidence and improper remarks by the court. Finding no error, we affirm.

1. Bush asserts the evidence was insufficient to support a finding of guilt beyond a reasonable doubt. We disagree. First, we note that once a defendant has been convicted, the evidence is construed to support the jury’s verdict, and “the defendant no longer enjoys the presumption of innocence.” Powell v. State, 310 Ga. App. 144 (712 SE2d 139) (2011). Furthermore, we do not weigh the evidence or determine witness credibility but only resolve whether “the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” Id. As long as there is some competent evidence to support the essential elements of the State’s case, we must uphold the jury’s verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that Bush and his accomplice, Walter Sapp, entered a diner armed with guns, made a male victim open the cash register, forcefully moved a female victim to the back of the diner and threatened to shoot her, fled the scene in an attempt to elude law enforcement, attempted to enter a getaway vehicle driven by Shanteria Jackson, and were caught by police officers and sheriff’s deputies in a wooded area near the diner. In the same wooded area and on Sapp’s person, officers found the cash stolen from the diner’s register, clothing similar to that worn during the robbery, and two handguns which were identified as those used during the crime.

OCGA § 16-2-21 provides: “Any party to a crime who did not directly commit the crime may be indicted, tried, convicted, and punished for commission of the crime upon proof that the crime was committed and that he was a party thereto.” While Bush argues that at no time during the robbery did he “take any money or other items from [the male victim] and did not point a weapon at [him],” here, it is undisputed the crimes of armed robbery, false imprisonment, aggravated assault, and possession of a firearm during the commission of a felony occurred. Whether it was Bush or his accomplice that pointed the gun at the victim and took the property of the diner, Bush could still be found guilty of the crimes charged and rightfully convicted of those crimes through his role as a party to the crime. Viewing the entirety of the evidence in the light most favorable to the jury’s verdict, a trier of fact could find Bush guilty beyond a reasonable doubt. See OCGA §§ 16-8-41 (a) (armed robbery), 16-5-21 (a) (2) (aggravated assault), 16-5-41 (a) (false imprisonment), and 16-11-106 (b) (1) (possession of a firearm during the commission of a felony).

Bush also argues that his actions during the crimes in question were done under duress and coercion by Sapp. In order to show a justification defense of coercion, Bush must prove his criminal acts were “performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” OCGA § 16-3-26. Furthermore,

[i]n order for duress or fear produced by threats or menaces [ ] to be a valid legal excuse for doing anything which would otherwise be criminal, the act must have been done under such threats or menaces as show that life or member was in danger, or that there was reasonable cause to believe that there was such danger. The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act.

(Citations and punctuation omitted; emphasis in original.) Holder v. State, 194 Ga. App. 790, 794 (4) (391 SE2d 808) (1990). The trial court appropriately charged the jury regarding the defense of coercion. And, “[i]t is the jury’s role to resolve evidentiary conflicts, determine witness credibility, and decide the reasonableness of hypotheses.” Martinez v. State, 303 Ga. App. 71, 74 (1) (692 SE2d 737) (2010). Having received the proper charge regarding coercion and duress from the trial court, the jury was authorized to reject Bush’s claim that he was coerced into participating in the crimes. See Treadwell v. State, 272 Ga. App. 508, 509-510 (1) (613 SE2d 3) (2005).

2. Bush asserts the trial court’s question during Shanteria Jackson’s testimony conveyed an opinion regarding her credibility and bolstered the State’s case. We disagree. OCGA § 17-8-57 provides:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

“To violate this statute, the comments must focus on a disputed issue of fact.” (Citation and footnote omitted.) Smith v. State, 275 Ga. App. 60, 63 (4) (619 SE2d 694) (2005). We must determine whether there existed such a violation. State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

During Jackson’s testimony alleging her coerced role in the armed robbery, the trial judge asked, “Did you tell the judge before whom you entered your plea of guilty to robbery, that you were forced to do it?” Jackson responded, “No, sir.” Earlier in her testimony, Jackson had explained that although she was coerced by Sapp, she nevertheless pleaded guilty because “[her] lawyer said if [she] took it to trial and... lost [she] could be facing a life sentence.” Bush argues that the trial court’s questioning of Jackson expressed and intimated the court’s opinion regarding the credibility of Jackson’s testimony concerning Bush’s alleged involuntary and coerced participation in the robbery.

Decided August 16, 2012.

Randall H. Richardson, Ernie M. Sheffield, for appellant.

Joseph K. Mulholland, District Attorney, Heather H. Lanier, Assistant District Attorney, for appellee.

OCGA § 17-8-57 gives the trial court the authority to propound questions to a witness to develop the truth of a case or to verify testimony. Foster v. State, 314 Ga. App. 642 (725 SE2d 777) (2012). “[A]nd the extent of such an examination is a matter for the trial court’s discretion.” (Citation and punctuation omitted.) Finley v. State, 286 Ga. 47, 51 (9) (a) (685 SE2d 258) (2009). Here we recognize no violation of OCGA § 17-8-57 in the trial court’s question. The intent of the question was to clarify Jackson’s previous testimony concerning her explanation of why she pleaded guilty when she claimed she was threatened by Sapp. The question did not express or intimate the trial judge’s opinion as to Jackson’s credibility. See Callaham v. State, 305 Ga. App. 626, 628-629 (2) (700 SE2d 624) (2010) (trial court’s questions to victim’s wife were posed to clarify wife’s confusing testimony concerning whether she identified defendant as shooter).

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

       Jackson pleaded guilty to robbery in the same incident prior to Bush’s trial.


text:
    A12A0988.
    LOWE v. THE STATE.
    (731 SE2d 127)
   Boggs, Judge.

Richard Bernard Lowe was indicted on one count of child molestation and one count of incest upon his fourteen-year-old niece, T. L. In a second indictment, he was charged with one count of child molestation upon his thirteen-year-old niece, G. L. Following a trial on both indictments, the jury acquitted Lowe of child molestation involving G. L. but found him guilty of child molestation and incest with respect to T. L. The trial court denied his motion for new trial, and he appeals. In his sole enumeration of error, Lowe argues that the trial court erred when it allowed evidence of prior convictions without an express finding that the evidence was more probative than prejudicial. In light of the overwhelming evidence of Lowe’s guilt, however, we need not address this question. We therefore affirm.

Lowe testified in his own defense, and, during his direct examination, the following exchange occurred:

Q: Under indictment number 09CR-0271, you’re charged with one count of child molestation. It alleges that between the 19th of September 2008, and the 20th of September 2008, you committed an immoral and indecent act to [G. L.], by touching her on the buttocks and placing the child’s hand on your penis. Did that happen?
A: No, sir.
Q: Do you have any idea why these two girls would make this up?
A: I don’t know. I tell you about that thing, when it first came at me, I was like — it — even then it bothered me, for the simple fact that because I took too much time to try and do things right, for people and to other people, you know. I still do — even now I find myself wanting to figure out why this [is] happening, because like I say, all I did most of the time was work, help people all the time, and stay at home and try and take care of home, make sure everything was taken [c]are of. That was it. That’s all I do now. I mean, even if I was —if I had [the] opportunity now, these are the things I would do even now.

During the State’s cross-examination, the prosecutor asked that the jury be excused to determine whether Lowe had elected to put his character in issue by this testimony. Based on Lowe’s assertion that he “took too much time to try and do things right, for people and to other people,” and without any finding that the evidence would be more probative than prejudicial, the trial court permitted the prosecutor to cross-examine Lowe on his four previous convictions. The prosecutor questioned him regarding a prior conviction in 1989 for obstruction of police officers, a 1991 guilty plea to aggravated sodomy, and 1994 guilty pleas to the sale of a controlled substance and possession of a controlled substance with intent to distribute. After deliberating for only 21 minutes, the jury found Lowe guilty of incest and child molestation with respect to T. L. but found him not guilty of the child molestation charge with respect to G. L.

Lowe contends that the trial court erroneously allowed evidence of prior convictions to be heard by the jury without an express finding that the evidence was more probative than prejudicial. See OCGA § 24-9-84.1 (a) (2). But pretermitting whether the trial court erred by allowing the State to cross-examine Lowe on his previous convictions, we need not address that question because Lowe “must show harm as well as error.” (Citation and footnote omitted.) Rubi v. State, 258 Ga. App. 815, 819 (4) (575 SE2d 719) (2002). “[T]he erroneous admission of evidence is harmless where it is highly probable that the error did not contribute to the verdict in light of the otherwise overwhelming evidence of guilt.” (Citation and footnote omitted.) Whitt v. State, 281 Ga. App. 3, 4 (635 SE2d 270) (2006) (erroneous admission of evidence of prior conviction harmless when evidence of guilt overwhelming).

Decided August 16, 2012.

Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, Kevin R. Majeska, Durwood R. Davis, Assistant District Attorneys, for appellee.

The record contains overwhelming evidence that Lowe is guilty of both incest and child molestation based on multiple acts of sexual intercourse with T. L. between June 1, 2008, and August 31, 2008. Not only did T. L. testify to these incidents, but a forensic biologist testified that DNA evidence collected from T. L., her baby, and Lowe indicated that the baby’s paternal DNA matched Lowe’s in all 16 locations examined. In addition, the biologist testified that the DNA evidence revealed a very rare allele present in both Lowe and the baby, which established a 99.9980 percent probability that Lowe was the father of T. L.’s baby. Even if Lowe’s prior convictions had been excluded from evidence, there is no reasonable probability that the outcome would have been different given the overwhelming evidence of Lowe’s guilt. Goldey v. State, 289 Ga. App. 198, 198-199 (1) (656 SE2d 549) (2008) (failure to redact allegedly prejudicial evidence, even if error, was harmless when evidence of child molestation, enticing a child, and exhibiting pornography to a minor was overwhelming; highly probable that disputed evidence did not contribute to verdict).

Judgment affirmed.

Doyle, R J., and Andrews, J., concur.

       Each location in a DNA profile contains two alleles, one from each parent. According to the witness, the allele in question is so rare that a statistical measure cannot be calculated for its occurrence in the general population and its presence can only be attributed to an immediate familial relationship.


author: Adams, Judge.

text:
    A12A0972.
    HUFF v. THE STATE.
    (731 SE2d 129)
   Adams, Judge.

After a trial by jury, Steve Huff was convicted of misdemeanor obstruction of an officer and pedestrian under the influence of alcohol. He challenges the sufficiency of the evidence. He contends there were inconsistencies in the testimony of one officer that provide reasonable doubt about whether he obstructed the officer.

We review the case “under the standard espoused in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to determine if the evidence, when viewed in the light most favorable to the prosecution, supports the verdict.” (Citation omitted.) Mack v. State, 272 Ga. 415, 416-417 (1) (529 SE2d 132) (2000).

The testimony at trial shows that at about 8:00 p.m. on July 30, 2010, two deputies with the McDuffie County sheriff’s office received a call that an unwanted person was at a store in McDuffie County. When the uniformed officers arrived, Huff walked out from behind the store carrying a golf club and a bag of food, and he appeared to be intoxicated. When the deputies identified themselves and repeatedly told Huff to drop the club for the purpose of officer safety, he refused. The deputies then pulled out their tasers, and Huff dropped the club. The deputies then approached him to ask about his presence at the store, and in response, Huff became agitated and spit turkey and collard greens onto one deputy, which, the deputy testified, “covered me from my waist down to my feet.” The officers told him that he was going to be arrested, and Huff resisted by not allowing the officers to put handcuffs on him. That led to a “tussle” where the officers got Huff to the ground, where he further resisted getting handcuffed, until eventually, the officers were able to secure the handcuffs. Huff would not get up on his own, and the officers picked him up to place him in the patrol car.

OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Here, the jury was authorized to find that Huff obstructed the officers in several ways. Huff placed the officers at risk of harm by refusing to drop the golf club when requested. See, e.g., Timberlake v. State, 315 Ga. App. 693, 694 (1) (727 SE2d 516) (2012) (placing officer’s safety at risk is evidence of obstruction). Huff spit food on the officer. See, e.g., Gordon v. State, 199 Ga. App. 704, 705 (2) (406 SE2d 110) (1991) (“The jury was authorized to find that defendant’s spitting on the officer while refusing to identify himself was not merely discourteous, it actually hindered and obstructed [the] [o]fficer... in the discharge of his official duties.”) (punctuation omitted); Williams v. State, 307 Ga. App. 675, 680 (705 SE2d 906) (2011) (attempt to spit in officer’s face was evidence of obstruction). And Huff resisted being handcuffed. See, e.g., Pearson v. State, 224 Ga. App. 467, 469 (2) (480 SE2d 911) (1997).

Decided August 20, 2012.

Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.