author: BARNES, Presiding Judge.

text:
    A17A1415.
    ROBINSON v. THE STATE.
    (805 SE2d 103)
   BARNES, Presiding Judge.

A jury found Johnny Ray Robinson guilty of aggravated child molestation, and the trial court denied his amended motion for new trial. On appeal, Robinson challenges the sufficiency of the evidence, and he contends that the trial court erred by permitting the introduction of multiple photographs of the victim’s injuries, testimony regarding the victim’s need for therapy after the sexual encounter, and evidence of his prior bad acts. F or 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 sustain the verdict.” Anthony v. State, 317 Ga. App. 807, 807 (732 SE2d 845) (2012). So viewed, the evidence showed that the 13-year-old victim lived in an apartment complex in Newton County with her mother and siblings. The victim suffered from weakness in her left side, short-term memory problems, and comprehension difficulties caused by a prior traumatic brain injury

On July 1, 2013, the victim was walking through the apartment complex when two 16-year-olds, Robinson and Joshua Harris, began following her. Robinson lived at the apartment complex, while Harris often visited the complex but did not live there.

Robinson and Harris approached the victim and asked her to go with them to the woods behind one of the apartment buildings. Once in the woods with the victim, Robinson and Harris had sexual intercourse with her, causing her pain and injury in her vaginal area.

Because of the victim’s cognitive impairments, her nine-year-old brother often would look after her when she left the apartment. On the day in question, the brother was outside looking for the victim when he heard her screaming and found Robinson and Harris “messing with her” in the woods. According to the brother, Robinson, Harris, and the victim did not have on their pants, and Robinson was on top of the victim while Harris was holding her by the arms. The brother told the two juveniles to leave his sister alone, threw a stick at them in an effort to stop them, and ran and told his mother what he had seen. The mother ran to the woods, where she saw Harris with his pants down on top of the victim with her pants down while Robinson stood to the side. The mother jumped on Harris and struck him, after which Harris and Robinson fled from the scene.

An officer with the Covington Police Department was dispatched to the apartment complex, where he spoke with the victim and her mother, both of whom were distraught and crying. The mother told the officer what she had seen in the woods, and she identified Robinson and Harris as the two juveniles and informed the officer that Robinson lived at the apartment complex. The officer asked the victim if she had been vaginally penetrated and if she was hurt, and she nodded her head yes.

The officer transported the victim to the hospital, where her clothing, including bloody underwear, was collected as evidence, and a police investigator assigned to the case interviewed the victim and her mother. During the interview, the victim told the investigator that Robinson had pushed her to the ground and forced her to take down her pants, after which Robinson had attempted to penetrate her vagina with his penis even though she told him to stop. The victim told the investigator that she believed that the bleeding in her vaginal area had been caused by Robinson trying to penetrate her. The victim denied that Harris forced her to have sexual intercourse with him.

Later that night, the victim was transferred to Scottish Rite Hospital. A sexual assault kit was performed on the victim, and photographs were taken of an abrasion, a laceration, and bruising sustained by the victim in her vaginal area.

Robinson and Harris were located and transported to the police department. After interviewing the victim and her mother, the police investigator interviewed Robinson later that night once Robinson was advised of and waived his Miranda rights. Robinson told the investigator that he thought Harris had sexual intercourse with the victim. Robinson also told the investigator that he had tried to fully penetrate the victim but had only been able to get the head of his penis inside of her vagina before he quit. Robinson denied that the victim had been raped, but he admitted that the victim had appeared scared and had tried to pull her pants back up during the encounter.

On July 16, 2013, a follow-up physical examination of the victim was conducted and additional photographs were taken of her injuries, which had not fully healed. Forensic interviews of the victim and her brother were conducted at a child advocacy center on that same date. During her forensic interview, the victim told the interviewer that Robinson took off her pants even though she said no, forced her to the ground, and forced his penis into her vagina while holding her down, causing her pain. She initially denied to the forensic interviewer that she had sexual intercourse with Harris, but later in the interview, she stated that Harris had forced her to have intercourse with him.

Robinson was indicted on charges of rape and aggravated child molestation. During the jury trial, the victim testified that she did not want to answer questions about what had happened in the woods and that she had blocked out the bad things that had happened to her that involved Robinson and Harris. The victim did testify that she remembered going to the hospital after the incident and having pain in her vaginal area. The victim also testified, without any objection from the defense, that she had been seeing a therapist since the time of the incident.

The victim’s mother and brother testified and described what they had seen in the woods. The mother also testified about the victim’s impairments resulting from her prior traumatic brain injury, as did a school psychologist who had evaluated the victim in March 2013. Additionally, the officer who first responded to the scene testified to his interactions with the victim and her mother, and the investigator who initially interviewed the victim and Robinson testified about those interviews. The State also introduced recordings of the forensic interviews of the victim and her brother and of the police interview with Robinson.

With respect to physical evidence, a forensic biologist from the Georgia Bureau of Investigation testified on behalf of the State that there was male DNA found in the cervical swabs from the victim’s sexual assault kit, although there was insufficient DNA present on the swabs to match it to the DNA profile of any particular male. The State also introduced, without objection from the defense, multiple photographs of the victim’s injuries to her vaginal area taken during her initial examination at Scottish Rite Hospital on July 1, 2013, and during her follow-up examination on July 16, 2013, as well as testimony describing those injuries from the pediatric nurse practitioner and physician who conducted those examinations. The pediatric nurse practitioner and physician described an actively bleeding abrasion, a laceration, and bruising to the victim’s vaginal area, which they testified was consistent with vaginal penetration and with blunt force trauma caused by a penis. The physician further testified that there was residual bruising still visible at the victim’s follow-up examination conducted on July 16, 2013.

The State also introduced evidence of prior bad acts committed by Robinson in 2009 and 2012. Following a limiting instruction from the trial court, the State presented evidence that in 2009, Robinson fondled himself and exposed his penis to several young female students at their middle school. Later in the trial, after an additional limiting instruction from the trial court, the State presented evidence that in 2012, Robinson helped a female neighbor at the same apartment complex carry groceries into her apartment unit, but then locked the door and tried to get her to have sexual intercourse with him. The neighbor testified that when she refused Robinson’s overtures, he chased her around her apartment and held her down on the sofa before she was able to successfully fight him off. Robinson admitted in a police interview that he had chased the neighbor around her apartment unit and had wrestled with her on the couch while on top of her, but he denied that he had been forceful with the neighbor.

After the State rested, the defense called two witnesses who had been friends with the victim and Robinson. They testified that after the sexual incident in the woods, the victim had acted “regular, like nothing had happened” when they saw her again, had laughed and joked about the incident, and had described how she had acted in a sexually suggestive manner toward Robinson and Harris. The defense also recalled the victim and played for the jury the recording of the police investigator’s initial interview of her on July 1, 2013 in an effort to show inconsistencies in her account of the incident. Additionally, the defense called a special education expert, who testified that the victim appeared to be high functioning, despite her previous traumatic brain injury. Robinson himself elected not to testify

Upon reviewing all the evidence, the jury was unable to reach a verdict on the rape count of the indictment, and the trial court declared a mistrial on that count due to a hung jury. The jury found Robinson guilty of aggravated child molestation, and the trial court sentenced him to life with the first 30 years in confinement,. Robinson filed a motion for new trial, as amended, which the trial court denied. This appeal followed.

1. Robinson contends that the evidence was insufficient to support his conviction for aggravated child molestation.

When the appellate courts review the sufficiency of the evidence, they do not re-weigh the evidence or resolve conflicts in the testimony; instead they defer to the jury’s assessment of the weight and credibility of the evidence. Appellate courts determine 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.

(Citations and punctuation omitted.) Dority v. State, 335 Ga. App. 83, 83 (780 SE2d 129) (2015). See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

“A person commits the offense of child molestation when such person . . . [djoes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). “Thecrime advances to one of aggravated child molestation when the victim is physically injured. See OCGA § 16-6-4 (c).”Moon v. State, 335 Ga. App. 642, 646 (1) (b) (782 SE2d 699) (2016).

Here, the indictment alleged that Robinson committed aggravated child molestation in that he

did commit an immoral and indecent act to [the victim,] a child under the age of 16 years, with the intent to arouse and satisfy the sexual desires of himself by placing his penis in the sexual organ of said child, said act causing injury, to wit: contusion, bleeding, abrasion, and laceration to the sexual organ of said child[.]

Robinson concedes that there was sufficient evidence that on the day in question, the 13-year-old victim sustained injuries to her vaginal area from a sexual encounter as alleged in the indictment. Robinson argues, however, that there was insufficient evidence that he (rather than Harris) was the one who vaginally penetrated the victim and caused her injuries, given the inconsistencies in the victim’s testimony, his account of the encounter during his recorded police interview, and the jury’s inability to reach a verdict on the rape charge. Robinson’s argument is without merit.

Although the victim was unable to describe her sexual encounter with Robinson when she testified at trial, the jury could consider, as substantive evidence under the Child Hearsay Statute, OCGA § 24-8-820, the victim’s prior out-of-court statements made in her forensic interview that Robinson had vaginally penetrated her with his penis and that it hurt. See Kirkland v. State, 334 Ga. App. 26, 33 (3) (778 SE2d 42) (2015). Furthermore, the jury could consider the victim’s prior out-of-court statement made in her initial interview with the police investigator that she believed that the bleeding from her vagina had been caused by Robinson. See id. Additionally, the victim’s brother testified that he saw Robinson on top of the victim and that both of them had their pants off, and Robinson himself admitted during his recorded police interview that he had vaginally penetrated the victim to some degree with his penis and that she told him it hurt.

Given this combined evidence, the jury was entitled to find that Robinson vaginally penetrated the victim, causing her physical injury as alleged in the indictment. The fact that the victim was unable to describe the sexual encounter at trial, or that there were inconsistencies in her descriptions of the encounter, “went to the weight and credibility that the jury wished to assign to the State’s otherwise sufficient evidence and presents no basis for reversal.” (Citation and punctuation omitted.) Galvan v. State, 330 Ga. App. 589, 593 (1) (768 SE2d 773) (2015). Moreover, the fact that the jury was unable to reach a verdict on the rape charge has no bearing on Robinson’s aggravated child molestation conviction “[b] ecause a jury speaks only through its verdict, [and thus] its failure to reach a verdict cannot — by negative implication — yield a piece of information that helps put together the trial puzzle.” Yeager v. United States, 557 U. S. 110, 121 (II) (129 SCt 2360, 174 LE2d 78) (2009). As the United States Supreme Court explained in Yeager, “there is no way to decipher what a hung count represents. . . . A host of reasons — sharp disagreement, confusion about the issues, exhaustion after a long trial, to name but a few — could work alone or in tandem to cause a jury to hang,” and therefore any effort to ascribe the basis for a hung jury would be mere “guesswork.” Id. Accordingly, contrary to Robinson’s contentions on appeal, we conclude that the evidence was sufficient to enable a rational jury to find Robinson guilty beyond a reasonable doubt of aggravated child molestation as alleged in the indictment. Jackson, 443 U. S. at 319 (III) (B).

2. Robinson also argues that the trial court erred in admitting multiple photographs of the injuries sustained by the victim in her vaginal area. According to Robinson, many of the photographs introduced by the State were duplicative, and the introduction of multiple photographs showing the same vaginal injuries served only to inflame the jury. We are unpersuaded.

As an initial matter, Robinson failed to object to the admission of the photographs, and thus we review his claim only for plain error. See Lupoe v. State, 300 Ga. 233, 243 (4) (794 SE2d 67) (2016).

To show plain error, [Robinson] must point to an error that was not affirmatively waived, the error must have been clear and not open to reasonable dispute, the error must have affected his substantial rights, and the error must have seriously affected the fairness, integrity or public reputation of judicial proceedings. . . . Satisfying all four prongs of this standard is difficult, as it should be.

(Citations and punctuation omitted.) Id. We find no plain error in the admission of multiple photographs of the victim’s injuries, which were relevant and material to issues raised in the case and were admissible even if duplicative.

Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401.

Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jury

(Citation and punctuation omitted.) Smith v. State, 325 Ga. App. 739, 742 (2) (754 SE2d 783) (2014).

“There is abundant case authority that photographs showing an accurate and correct representation of a person or an object material to the issues in the case are admissible.” (Citations and punctuation omitted.) Hill v. State, 246 Ga. 402, 406 (IV) (271 SE2d 802) (1980). And, as a general rule, photographs showing the extent and nature of the victim’s injuries caused by the defendant are relevant and material in a criminal case, and photographs should not be excluded from evidence simply because the State could prove the location and severity of the injuries through other means. See id.; Taylor v. State, 304 Ga. App. 573, 576(2) (b) (696 SE2d 498) (2010); Jefferson v. State, 206 Ga. App. 544, 548-549 (5) (425 SE2d 915) (1992). “To rule otherwise would unfairly prejudice the [Sjtate from establishing a material fact by more than one source of evidence.” (Citation and punctuation omitted.) Hill, 246 Ga. at 406 (IV).

Here, proof that Robinson used force was a necessary element of the rape count of the indictment, OCGA § 16-6-1 (a) (1), and proof that the victim was physically injured was a necessary element of the aggravated child molestation count of the indictment. OCGA § 16-6-4 (c). Photographic evidence of the existence and extent of the victim’s injuries to her vaginal area thus was relevant and material to proving necessary elements of both crimes charged in the indictment. Furthermore, photographs showing the victim’s injuries from different, angles and at different, stages of the healing process were relevant and material because they demonstrated the severity of the victim’s injuries and thus supported the credibility of her account of the sexual encounter over Robinson’s account. See Benton v. State, 301 Ga. 100, 104 (4) (799 SE2d 743) (2017) (trial court may admit photographs “of the same injury that present different perspectives of that injury”); Curry v. State, 243 Ga. App. 712, 715 (2) (a) (534 SE2d 168) (2000) (photographs taken with different photographic equipment on different dates were relevant and material because the jury could use the photographs “as a basis for determining the severity of the victim’s injuries or the credibility of her version of events”); Jefferson, 206 Ga. App. at 548 (5) (multiple photographs admissible where “necessary to fully depict the extent of [the victim’s] injuries”).

Given that the photographs of the victim’s injuries were material and relevant to issues raised at trial, the photographs were admissible “even if they, to some extent, duplicated other photographs.” Curry, 243 Ga. App. at 715 (2) (a). See also Johnson v. State, 289 Ga. 106, 108 (2) (709 SE2d 768) (2011) (photographs “are admissible even if they are duplicative and may inflame the jury”) (citation and punctuation omitted). As Georgia courts have emphasized, “[t]he fact that [photographs are] somewhat repetitive, will not alone rule them out.” Meeker v. State, 249 Ga. 780, 780-781 (2) (294 SE2d 479) (1982). See Marks v. State, 210 Ga. App. 281, 283 (3) (435 SE2d 703) (1993) (no error in admission of multiple photographs and video recording of victim’s body, even if the evidence was “somewhat repetitive”). We thus discern no error, much less plain error, in the admission of the multiple photographs of the victim’s vaginal injuries. See Benton, 301 Ga. at 104 (4); Curry, 243 Ga. App. at 715 (2) (a); Jefferson, 206 Ga. App. at 548-549 (5).

3. Robinson argues that the trial court erred in allowing the State to elicit testimony from the victim and her mother that the victim had been in continuous therapy since the time of the sexual encounter. According to Robinson, testimony about the victim’s need for therapy was not material to any issue in the case, was prejudicial to him, and constituted impermissible victim-impact testimony that should have been introduced only in the sentencing phase of his trial. Again, we disagree.

Robinson did not object to the testimony at trial regarding the victim’s need for therapy, and thus we review his claim only for plain error, see Lupoe, 300 Ga. at 243 (4), which he has failed to demonstrate. “We have previously recognized that evidence of a purported rape victim’s state of mind following the attack may corroborate her claim that she was raped.” Smith v. State, 244 Ga. App. 165, 167 (2) (534 SE2d 903) (2000). Hence, evidence that the victim underwent therapy after her sexual encounter with Robinson was relevant and admissible to corroborate her claim that Robinson had forcibly raped and injured her, a claim that was hotly disputed by Robinson and defense witnesses who testified that the victim appeared “regular, like nothing had happened” after the sexual encounter and had joked about it. See id. (testimony that victim “had been a ‘basket case’ since the attack” was properly admitted to corroborate victim’s rape allegation). Accord Parks v. State, 241 Ga. App. 381, 383 (4) (526 SE2d 893) (1999) (evidence of victim’s course of risky medical treatment following rape was properly admitted because it “tended to show that she would not have voluntarily consented to unprotected sex with [the defendant]”). It follows that Robinson has failed to demonstrate any error, plain or otherwise, in the trial court’s admission of testimony regarding the victim’s therapy.

4. Robinson also maintains that the trial court erred in permitting the State to introduce evidence of his two prior bad acts — the 2009 incident in which he exposed himself in front of underage girls, and the 2012 incident in which he attempted to sexually assault a female neighbor. We disagree.

(a) Robinson first contends that the trial court erred in allowing the introduction of evidence of the 2009 and 2012 incidents because neither prior bad act was introduced for a proper purpose under OCGA § 24-4-404 (b) (“Rule 404 (b)”), but instead was introduced simply to prove his bad character. Rule 404 (b), however, does not control the analysis in the present case. Rather, OCGA § 24-4-413 (a) (“Rule 413 (a)”) and OCGA § 24-4-414 (a) (“Rule 414 (a)”) are the more specific statutes that supersede the provisions of Rule 404 (b) in sexual assault and child molestation cases. See Dixon v. State, 341 Ga. App. 255, 258 (1) (800 SE2d 11) (2017); Steele v. State, 337 Ga. App. 562, 566 (3), n. 5 (788 SE2d 145) (2016); Dority, 335 Ga. App. at 95 (3). Rules 413 and 414 “create a rule of inclusion, with a strong presumption in favor of admissibility,” and “the State can seek to admit evidence under these provisions for any relevant purpose, including propensity” (Citations and punctuation omitted.) Dixon, 341 Ga. App. at 258 (1). “[A] trial court’s decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion.” (Citation and punctuation omitted.) Steele, 337 Ga. App. at 565-566 (3). We discern no abuse of discretion by the trial court here.

Evidence that Robinson fondled and exposed his penis in the presence of underage girls at their middle school in 2009 constituted evidence of a prior act of child molestation committed by Robinson. See OCGA § 16-6-4 (a) (1); Bentley v. State, 179 Ga. App. 287, 287 (1) (346 SE2d 98) (1986) (evidence that defendant exposed his penis to underage girls supported child molestation conviction). Introduction of evidence of the 2009 incident thus was governed by Rule 414 (a), which provides: “In a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.” And, as we have explained, under Rule 414 (a),

showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct. Thus, evidence that a defendant engaged in child molestation in the past is admissible to prove that the defendant has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.

(Punctuation omitted.) State v. McPherson, 341 Ga. App. 871, 873-874 (800 SE2d 389) (2017), quoting Eubanks v. State, 332 Ga. App. 568, 571 (2) (774 SE2d 146) (2015).

It is true that Robinson was 13 years old at the time of the 2009 incident, and a defendant’s youth at the time of a prior similar transaction should be considered in determining the relevancy of such evidence. See Arbegast v. State, 332 Ga. App. 414, 419 (2) (a) (ii) (773 SE2d 283) (2015). But Robinson was old enough at the time of the prior bad act “to be held criminally responsible for his conduct in this State. See OCGA § 16-3-1 (age 13)[.]” Dean v. State, 321 Ga. App. 731, 735 (1) (b) (742 SE2d 758) (2013). Given Robinson’s age and his decision to expose himself to several underage girls in a school setting, his actions were “not the faultless act of an innocent child,” but rather demonstrate evidence of his lustful disposition. (Citations and punctuation omitted.) Condra v. State, 238 Ga. App. 174, 176 (2) (518 SE2d 186) (1999). Accordingly, the trial court did not abuse its discretion in concluding that evidence of the 2009 incident was admissible for a relevant purpose under Rule 414 (a). See id.; Arbegast, 332 Ga. App. at 419 (2) (a) (ii); Ledford v. State, 313 Ga. App. 389, 390-391 (1) (721 SE2d 585) (2011). Compare Maynard v. State, 282 Ga. App. 598, 602-604 (3) (639 SE2d 389) (2006) (similar transaction evidence of the defendant’s sexual contact with two male cousins 20 years earlier, when the defendant was around 12 years old, was inadmissible in his trial for aggravated child molestation of a female victim).

The trial court likewise did not abuse its discretion with respect to the 2012 incident. Evidence that Robinson attempted to sexually assault his female neighbor in 2012 constituted evidence of a prior attempted rape or sexual battery committed by Robinson. See OCGA §§ 16-4-1 (“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.”); 16-6-1 (a) (1) (“A person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and against her will[.]”); 16-6-22.1 (b) (“Aperson commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.”). Rule 413 (a) provides: “In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” An “offense of sexual assault” includes attempted rape and attempted sexual battery, see OCGA § 24-4-413 (d) (1), and therefore evidence of the 2012 incident was governed by Rule 413 (a). And, pursuant to Rule 413 (a), evidence of Robinson’s prior offense of sexual assault was relevant to prove his intent and lustful disposition in the current case, and to disprove his claim that the victim’s allegation of a forced sexual encounter was fabricated. See Kritlow v. State, 339 Ga. App. 353, 355-356 (2) (793 SE2d 560) (2016); Marlow v. State, 337 Ga. App. 1, 4 (1) (b) (785 SE2d 583) (2016), disapproved in part on other grounds by Quiller v. State, 338 Ga. App. 206, 209, n. 3 (789 SE2d 391) (2016). Consequently, the trial court did not abuse its discretion in concluding that evidence of the 2012 incident was admissible for a relevant purpose under Rule 414 (a).

Decided August 23, 2017.

Teresa L. Doepke, for appellant.

Layla H. Zon, District Attorney, Amber R. Bennett, Assistant District Attorney, for appellee.

(b) Robinson also argues that the prejudicial effect of the prior bad acts he committed in 2009 and 2012 substantially outweighed any possible probative value of the evidence under OCGA § 24-4-403 (“Rule 403”). Pretermitting whether the standard balancing test employed under Rule 403 should apply to evidence introduced under Rules 413 (a) and 414 (a), we conclude that even if it does apply, the trial court did not abuse its discretion in concluding that the balance favored admission of evidence of the 2009 and 2012 incidents. Particularly in light of Robinson’s attacks on the victim’s credibility, the strong presumption in favor of the admission of evidence under Rules 413 and 414, and the trial court’s limiting instructions to the jury, the trial court acted within its discretion in permitting the State to introduce evidence of Robinson’s prior acts of child molestation and sexual assault. See Dixon, 341 Ga. App. at 262 (1) (b); Steele, 337 Ga. App. at 567 (3); Eubanks, 332 Ga. App. at 570 (1).

Judgment affirmed.

Mercier, J., concurs. McMillian, J., concurs in Divisions 1, 2, 3, and 4 (a) and concurs in judgment only in Division 4(b).

       Because Robinson was tried in March 2015, we will address evidentiary issues raised in this appeal under Georgia’s new Evidence Code. See Ga. L. 2011, p. 214, § 101 (new Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”).

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

       It is unclear from the record what charges were brought against Harris.

       The Child Hearsay Statute, OCGA § 24-8-820, provides:
      A statement made by a child younger than 16 years of age describing any act of sexual contact or physical abuse performed with or on such child by another or with or on another in the presence of such child shall be admissible in evidence by the testimony of the person to whom made if the proponent of such statement provides notice to the adverse party prior to trial of the intention to use such out-of-court statement and such child testifies at the trial, unless the adverse party forfeits or waives such child’s testimony as provided in this title, and, at the time of the testimony regarding the out-of-court statements, the person to whom the child made such statement is subject to cross-examination regarding the out-of-court statements.

       Even if Robinson could show that the introduction of multiple photographs of the victim’s injuries constituted error because of the alleged number of duplicative photographs, he cannot meet the third component of the plain error test, which “requires the appellant to make an affirmative showing that the error probably did affect the outcome below.” (Citation and punctuation omitted.) Lupoe, 300 Ga. at 243 (4). This is because “generally, the admission of cumulative evidence is harmless,” and Robinson has failed to show how the admission of the allegedly cumulative photographs prejudiced him in any manner. Hafeez v. State, 339 Ga. App. 467, 469 (2) (793 SE2d 632) (2016) (admission of photographs that were duplicative of video recording was harmless).

       Although not enumerated as error, Robinson also argues in his brief that the trial court erred in permitting testimony that the victim’s brother had been in therapy since witnessing the sexual encounter between the victim, Robinson, and Harris. But Robinson did not object to this testimony at trial and thus must establish plain error. See Lupoe, 300 Ga. at 243 (4). Even if we assume arguendo that the trial court erred in allowing the testimony, Robinson has failed to affirmatively demonstrate that the admission of testimony regarding the brother’s therapy probably affected the outcome of his trial and therefore cannot show plain error. See id.

       Rule 404 (b) provides in part:
      Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. . . .

       Rule 403 provides:
      Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

        See Latta v. State, 341 Ga.App. 696, 701 (2) (802 SE2d 264) (2017) (noting that court was “assum[ing] without deciding that the evidence admitted under OCGA § 24-4-413 should be evaluated under the same type of balance as evidence admitted under OCGA § 24-4-404 (b), rather than under a balance more generous to its admission”); Dixon, 341 Ga. App. at 259-261 (1) (D (noting that it is unclear whether evidence admitted under Rules 413 (a) and 414 (a) “should be evaluated under a different type of Rule 403 balance that weighs in favor of admission”) (citations and punctuation omitted).


source: Caselaw Access Project

author: Self, Judge.

license: Public Domain

text:
    A17A1253.
    CAMACHO v. THE STATE.
    (804 SE2d 660)
   Self, Judge.

Following a jury trial, Marcos Benitez Camacho was convicted of trafficking in methamphetamine. Camacho appeals the denial of his amended motion for new trial, asserting that the trial court erred (1) in charging the jury on the law of deliberate ignorance, (2) in allowing the State to impeach Camacho by questioning him about a previous, unrelated arrest, (3) in admitting hearsay testimony, and (4) in permitting the State to make prejudicial remarks in closing argument. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence showed that on April 17, 2015, federal agents with the United States Department of Homeland Security/Homeland Security Investigations (“DHS”) arranged for a confidential informant (“the Cl”) to make a controlled delivery of over 44 kilograms of methamphetamine to a member of a drug trafficking organization (“DTO”). The methamphetamine, with a street value of $12,000 to $18,000 per kilogram and $1,000 per ounce, was wrapped in 189 individual packages and concealed in a hidden compartment in the trunk of a trap vehicle that was to be driven by the CL The trap vehicle was a white Ford Fusion outfitted with a GPS device and a kill switch, allowing agents to remotely and immediately disable the vehicle if necessary. A second confidential informant had contacted members of the DTO to arrange delivery of the drugs, and that informant relayed the DTO’s instructions to federal agents, who then passed them along to the CL The Cl knew he was delivering drugs to the DTO, but he did not know what kind of drugs; he was merely told to wait for “some Hispanic males . . . [tjhat will come and . . . pick up the car.”

With undercover agents following him, the Cl drove the Fusion to the parking lot of a Lowe’s in Gwinnett County, where other undercover agents had set up surveillance. A red pickup truck driven by two Hispanic men entered the parking lot followed by several counter-surveillance vehicles. The Cl made contact with the red pickup truck and handed the driver the keys to the Fusion. The men in the pickup truck asked the Cl to drive the Fusion three exits north on 1-85, but he refused. They handed the Cl a cell phone, and he advised the person on the other end that he could not drive the Fusion any farther. The men from the pickup then said, “let’s go over here to the apartments and get... these two persons” and left the parking lot in the pickup truck.

About fifteen minutes later, the red pickup truck returned, followed by a black Acura. Camacho was sitting in the passenger seat of the Acura, and his pregnant wife was driving. Camacho exited the Acura and met with the two men driving the pickup truck. All three men then met the Cl who handed the Fusion keys to the two men, and they handed the keys to Camacho. The Cl showed Camacho and the two men how to operate the Fusion’s hidden compartment by putting the key in the ignition, turning on the defroster, and then pressing a button on the backseat allowing it to fold down, revealing the drugs. When the hidden compartment was exposed, the wrapped packages and a red bag were in plain view to all four men. The Cl explained that the red bag needed to be returned with the vehicle because it contained drugs he was delivering to someone else. The Cl then left the three men and walked into the Lowe’s.

Camacho drove the Fusion out of the parking lot followed by the red pickup truck and a Chrysler 300 sedan that agents had identified as a counter-surveillance vehicle. Undercover agents followed as Camacho drove north on 1-85 with his wife in the front passenger seat. At approximately 6:39 p.m., Georgia State Troopers Anthony Munoz and John Morris, who had been advised of the controlled delivery, stopped Camacho on 1-85 for operating his vehicle in the rain without headlights and driving with an inoperable brake light. As soon as Camacho was stopped by the police, the red pickup truck took off at a high rate of speed. The undercover agents did not pursue the pickup truck because of safety concerns.

After approaching the Fusion, Munoz noticed Camacho’s wife in the passenger seat and explained that DTOs often use decoys in vehicles to keep from being stopped. Decoys include passengers, particularly children, a Bible on the dashboard, or a sticker “on the back of [the] car to try to affiliate [the driver] with something to try to keep ... an investigator ... from looking at [the driver]...Munoz observed that Camacho was very nervous and shaking when he presented a Mexico driver’s license issued to Yadir Galarza Leon. Camacho told Munoz that he lived in Marietta and that he was driving a friend’s vehicle to visit cousins in Gainesville, but he could not provide the friend’s name. On the video captured by Munoz’s dashboard camera, Camacho’s wife is seen walking from the Fusion to the patrol car and she appears to enter the back of the patrol car. After she exits the patrol car and returns to the Fusion, one of the troopers says that Camacho’s wife told him that they borrowed the vehicle from a friend so she could attend a doctor’s appointment the following day. Camacho signed a Spanish consent to search form, and just as Munoz and Morris opened the trunk, Camacho’s wife began complaining of labor pains. Munoz called for an ambulance, and Camacho’s wife was transported to the hospital. In the hidden compartment of the trunk, the police discovered 189 packages of methamphetamine: 150 loose packages and 39 packages in the red and black duffle bag. Camacho was taken into custody.

At trial, Camacho testified in his own defense. He explained that he worked as a day laborer and that he and his wife would wait to be picked up for work at a QuikTrip close to their home in Marietta. On April 17, 2015, Camacho and his wife “came over ... to 285” to wait for work. At approximately 1:30 p.m., a small red pickup truck with two men inside pulled up to Camacho, and one man explained that he had just bought a car and needed someone to help him drive the car to a mechanic “on Exit 105. . . The men told Camacho they would pay him $80 to $100. Camacho agreed, and he and his wife followed the red pickup truck to a mall where they waited for over two hours for the car to arrive. While they waited in the mall, the pickup truck left but returned a short time later and the driver told Camacho that “they weren’t willing to bring the car to Exit 104. They’ve left it at Exit 101.” Camacho drove his black Acura to the Lowe’s parking lot, and his wife rode in the passenger seat because she “doesn’t know how to drive.” Camacho arrived five to ten minutes after the red pickup truck and parked one spot away from “the white car.” As soon as Camacho pulled up to the white car, the driver got out and “went inside the store really, really fast.” Camacho did not see him and the man did not “really [get] a good look at [Camacho].” One of the men from the red pickup truck handed Camacho the keys to the white car and instructed him to drive the car up to Exit 105 and drop it at a mechanic shop; the men said they would follow Camacho to the exit and then get in front of him so he could follow them to the shop and then they would drive Camacho and his wife back to their car. Camacho did not know where the mechanic shop was. He testified that he just wanted to earn some money and could not explain why the men in the pickup truck asked him to drive the white car when there were two of them. No one ever told Camacho about a secret compartment in the car or that there were drugs in the car.

Camacho testified that he was on his way to the mechanic shop on 1-85 when he was stopped by Munoz. Because Camacho does not speak English, he and Munoz could not understand each other. He told Munoz the car belonged to a friend because it was too difficult, to explain why he was driving the car to a mechanic shop. Camacho testified that Munoz asked him if he had family in Gainesville and he said yes; he denied telling Munoz that he was going to visit family in Gainesville. Camacho denied any involvement with a Mexican drug cartel or the drug business, and testified that he had no idea drugs were in the car and had never transported drugs. Camacho testified that he has used several different names and fake identification cards and that he gave Munoz a false identification card on April 17, 2015, because he had been deported under the name “Marcos Benitez Camacho.” He also lied to Munoz about his birthday. On November 28,2008, Camacho was stopped for possession of cocaine and released on bond. A year later, he was arrested for driving under the influence and deported to Mexico. Camacho has been deported three or four times, but returns to the United States each time with the help of “Coyotes” because there are no jobs in Mexico. Camacho’s family living in the United States pays a Coyote $4,000 to $5,000 each time for Camacho to return to the United States after he is deported.

DHS Special Agent Steven Ledgerwood explained that DTOs are made up of components and members, with each member having a different job. For example, when a member arrives from Mexico or Guatemala, the member’s first job might be to sit in an apartment and watch over 50 kilos of drugs. As a member moves up in the organization, the member will perform duties such as making deliveries, moving money, supervising junior members, and renting apartments and obtaining cars for the organization. Eventually, the member will communicate with Mexico to coordinate drug deliveries. Ledgerwood testified that it is not uncommon “to find drugs without money” because the DTOs hold a member’s family accountable: if drugs end up missing or stolen, the family of a member asked to watch over the drugs could be killed.

1. In his first enumeration of error, Camacho contends that the trial court erred by charging the jury, over objection, on deliberate ignorance. The court charged the jury as follows:

The element of knowledge may be satisfied by inferences drawn from proof that a defendant deliberately closed his eyes to what would otherwise have been obvious to him. A finding beyond a reasonable doubt of conscious purpose to avoid enlightenment would permit an inference of knowledge. Stated another way, a defendant’s knowledge of a fact maybe inferred from willful blindness to the existence of the fact. Again, whether or not you draw such an inference is a matter solely within your discretion.

Camacho contends that the charge was not warranted because the evidence points to actual knowledge. Camacho also asserts that the charge “misled the jury since it equated knowledge with intent, . . . significantly [lowering] the State’s burden of proof.”

(a) Camacho’s claim that the charge as given misled the jury is without merit. “The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.” (Citation and punctuation omitted.) Sims v. State, 296 Ga. App. 461, 464 (3) (675 SE2d 241) (2009). The deliberate ignorance charge given by the trial court in this case was a correct statement of law and tracked the language which was approved in Able v. State, 312 Ga.App. 252, 261 (3) (b) (718 SE2d 96) (2011).

(b) We agree with the trial court that there was some evidence to support a jury charge on deliberate ignorance.

[A] jury charge on deliberate ignorance or wilful blindness is appropriate when the facts support the inference that the defendant was aware of a high probability of the existence of the fact in question and purposely contrived to avoid learning all of the facts in order to have a defense in the event of a subsequent prosecution.

McCullough v. State, 330 Ga.App. 716, 721 (1) (769 SE2d 138) (2015). “A [trial] court should not instruct a jury regarding deliberate ignorance ‘when the evidence only points to either actual knowledge or no knowledge on the part of the defendant.’ ” (Emphasis supplied.) United States v. Schlei, 122 F3d 944, 973 (II) (D) (11th Cir. 1997), citing United States v. Stone, 9 F3d 934, 937 (11th Cir. 1993).

The deliberate ignorance instruction is based on the alternative to the actual knowledge requirement at common law that if a party has his suspicions aroused but then deliberately omits to make further enquiries, because he wishes to remain in ignorance, he is deemed to have knowledge.

(Citation omitted.) Perez-Castillo v. State, 257 Ga. App. 633, 634 (572 SE2d 657) (2002). Under Camacho’s version of events, there was some evidence that he blatantly ignored evidence of nefarious activity. Camacho believed he was driving the Fusion to a mechanic shop in exchange for $80 to $100. He did not question the men in the pickup truck as to why they needed his assistance when there were two of them, and even though he testified that he did not know the location of the mechanic shop, he made no inquiry as to why the men planned to follow him on the highway. The trial court did not err in giving a charge on deliberate ignorance. See, e.g., Garcia-Maldonado v. State, 324 Ga. App. 518, 522 (751 SE2d 149) (2013) (evidence sufficient to prove that defendant acted with deliberate ignorance when he drove vehicle containing 446.74 grams of methamphetamine without question to a motel in return for promise of $500).

2. In his second enumeration of error, Camacho contends that the trial court erred in allowing the State to impeach his character by questioning him about his 2008 arrest for possession of cocaine. The State contends that Camacho opened the door by answering the following questions on direct examination:

[DEFENSE COUNSEL]: Are you in the drug business?
[CAMACHO]: No.
[DEFENSE COUNSEL]: Have you ever knowingly transported drugs at any point in your entire life?
[CAMACHO]: No.

Before the prosecutor cross-examined Camacho, the following colloquy occurred outside the presence of the jury:

[THE STATE]: [Defense counsel] asked the defendant if — when he was deported, and he said he was deported in 2011/ 2012. [Defense counsel] asked him if he was deported under the name of Marcos Benitez Camacho and that’s why he had a false identification, and he said he was. [Defense counsel] then later on asked had he ever transported any drugs. Judge, I have evidence that he was deported in 2008 — in 2009 from a 2008 possession of cocaine case. . . . Judge, I believe that’s fair game. He’s opened the door to that. ... I believe I can get into that.
THE COURT: Any comment one way or the other, [defense counsel]?
[DEFENSE COUNSEL]: Yes, Judge. I mean, we don’t know any of the circumstances, I don’t believe, around — about this particular event. . . . There’s no — the question was, have you ever knowingly transported or — transported — I think that was the word —
[THE STATE]: You said, transported drugs, not large quantities —
[DEFENSE COUNSEL]: Yeah.
[THE STATE]: — notkilogram amounts. Transported drugs.
[DEFENSE COUNSEL]: Well, I . . . have no idea whether he’s transported anything or not.
[THE STATE]: He knows.
[DEFENSE COUNSEL]: The bottom line though is — I’m kind of at a loss to see how that would actually seriously impeach him. I did not ask if he possessed drugs. I asked if he transported drugs — knowingly transported drugs.
[THE STATE]: And if you’d look at our trafficking statute, Judge, trafficking is possessing.
[DEFENSE COUNSEL]: But possessing is not necessarily trafficking.
THE COURT: No, it’s not.
[THE STATE]: I agree. I agree.
THE COURT: But unless he stood perfectly still as he possessed drugs on that prior occasion, there’s some element of transportation likely implied in any sort of possession — well, maybe not any sort of possession — or, at least, there’s the argument. Do you have a copy of that earlier conviction?
[THE STATE]: No. I just have the GCIC report, Judge, for the arrest, and he was deported for that offense.
[DEFENSE COUNSEL]: I don’t. . . believe that there was a conviction, I —
[THE STATE]: No, no, he was deported and then they nolle prossed the —
THE COURT: Oh. All right. I’ll let you ask him.

Defense counsel did not interpose an objection during the bench conference or when the State asked Camacho on cross-examination about the arrest. The defense then rested, and the State called a rebuttal witness. Following this witness, Camacho moved for a mistrial, arguing that the State’s reference to the alleged charge “improperly injected [Camacho’s] character without any sort of good faith basis for doing so.” The trial court denied the motion. Preter-mitting whether the allegation improperly impugned Camacho’s character, there was no contemporaneous objection. “The failure to object contemporaneously constitutes a waiver.” Merritt v. State, 255 Ga. 459, 460 (2) (339 SE2d 594) (1986) (although defendant moved for a mistrial, testimony of another witness intervened between objectionable testimony and motion, and defendant made no contemporaneous objection), citing Cape v. State, 246 Ga. 520, 524 (5) (272 SE2d 487) (1980) (same). Moreover, “[a] motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” (Punctuation omitted.) Sweeney v. State, 233 Ga. App. 862, 865 (4) (506 SE2d 150) (1998), citing Worley v. State, 201 Ga. App. 704, 705 (2) (411 SE2d 760) (1991).

3. In his third enumeration of error, Camacho contends that the trial court erred in failing to act under OCGA § 17-8-75 on two occasions. We disagree.

(a) Camacho argues that the trial court impermissibly allowed the State to admit hearsay testimony of his wife, who was not present at trial, in violation of OCGA § 17-8-75. The alleged hearsay testimony occurred during the State’s cross-examination of Camacho:

[THE STATE]: And do you remember the portion of the video where Trooper Morris is talking to your wife, and he comes back to Trooper Munoz and he stated, she said, that they got the car from a friend for a doctor’s appointment they’re going to tomorrow in Duluth?
[CAMACHO]: I don’t know how she could have said all of that when she doesn’t speak English or anything.
[THE STATE]: Why would your wife lie about the doctor’s appointment and why you all got the car if you all didn’t have knowledge there were drugs in that car?
[CAMACHO]: Nobody — nobody ever said that to me, and I didn’t hear that. It’s until now that I — it’s only now that I’m even hearing that.

Camacho waived any challenge to this testimony on hearsay grounds by failing to object at trial. Edwards v. State, 282 Ga. 259, 260 (4) (646 SE2d 663) (2007) (because defendant did not object to alleged improper hearsay testimony on hearsay grounds, he failed to preserve issue for appeal). Moreover, Camacho cannot rely on OCGA § 17-8-75 to rectify this omission. OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.

(Emphasis supplied.) OCGA § 17-8-75 “only requires the judge to act where counsel makes a timely objection.” (Citation omitted.) Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992).

(b) In addition, Camacho contends that the trial court violated OCGA § 17-8-75 by not rebuking the prosecutor for making three “highly prejudicial” remarks during closing argument. At the beginning of closing argument, the prosecutor stated, “[Defense counsel] is going to get up here like he did in his opening statement, like he’s told you throughout this trial, and he’s going to try to disparage these men who are in an undercover capacity today as they are on every day when they’re out there protecting our lives.” (Emphasis supplied.) Camacho did not object to this statement at trial, but on appeal, he contends it impermissibly bolstered the credibility of the State’s witnesses. At another point during closing argument, the prosecutor argued as follows:

But did you all notice one thing when I asked [the Cl] to identify [Camacho] and asked him what he was wearing, [the Cl] said something very interesting and I don’t know if you all caught it. He said, [Camacho] was wearing a white shirt, and then he said, on the day of [Camacho] was wearing a white shirt. You know, [today] he’s got [on] stripes, you know. Well, in the trooper video, if you see the trooper video, when he comes out [of the black Acura], he’s got a solid white shirt on when his jacket’s open. How would [the Cl] know that? How would [the Cl] — he had never seen that trooper video. It’s not something that’s shown to confidential informants. It’s because he met him. He met him in that Lowe’s parking lot.

Camacho did not object to this argument at trial, but now alleges that it impermissibly bolstered the Cl’s testimony by arguing facts not in evidence. Lastly, Camacho takes issue with the following statement which he contends improperly inserted into the trial the prosecutor’s personal experience: “Those drugs go missing, somebody’s going to die in Mexico. Somebody’s family is going to die in Mexico. I’ve prosecuted murderers in this courthouse because of drug debts.” Camacho objected to this statement and moved for a mistrial, which the trial court denied.

For the same reasons stated in Division 3 (a), supra, Camacho’s claim of error as to the first two statements is waived because he failed to object. As for the third statement, we find no reversible error. “Parties enjoy ‘considerable latitude’ when making closing arguments.” (Citation omitted.) Hunt v. State, 219 Ga. App. 741 (1) (466 SE2d 894) (1995). Further, in ruling on a motion for mistrial made in response to an alleged inflammatory statement, the trial court “is vested with a broad and sound discretion, and [its] ruling will not be controlled by this [C]ourt unless manifestly abused.” (Citation omitted.) Edwards v. State, 219 Ga. App. 239, 243 (2) (d) (464 SE2d 851) (1995). Although not artfully worded, the prosecutor’s statement insinuated that the jury should convict for the safety of the community or to curb the problem of drug-related violence. Such a plea is not improper, and the trial court did not abuse its discretion in denying Camacho’s motion for a mistrial. See id. (trial court did not abuse its discretion in denying motion for mistrial when prosecutor argued that if defendant were not convicted of trafficking in cocaine, three-year-olds will be gunned down in the streets of Cleveland, Ohio). See also Philmore v. State, 263 Ga. 67, 69 (3) (428 SE2d 329) (1993) (“It is not improper for a prosecutor to appeal to the jury to convict for the safety of the community [cit.] or to argue as a part of the jury’s duty that it should convict so as to stem a drug problem in the community [cit.] or to convict so as to send a message to others that criminal activities will not go unpunished.”).

Judgment affirmed.

Dillard, C. J., and Ray, R J., concur.

Decided August 9, 2017

Reconsideration denied August 25, 2017

Ramon Alvarado, for appellant.

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

       Agents explained that a controlled delivery is used to further the investigation into a drug trafficking organization. The goal of a controlled delivery is to identify the individuals or co-conspirators involved in drug trafficking organizations. Agents testified that they alerted the Georgia State Patrol of the controlled delivery and advised them to have officers in the area ready to establish probable cause to conduct a “whisper stop” of the “trap vehicle.”

       The Cl was not wearing a wire during the delivery. At trial, the State introduced photographs depicting the events as described by the Cl, up until the time the Cl met with Camacho and the two men from the pickup truck. Special Agent Jason Saude explained that he took the photographs from a distance, but that he could not photograph the Cl’s meeting with Camacho and the two men because a truck arrived before the pickup truck and Acura returned to the parking lot and blocked his view of the Fusion.

       Camacho defined a “Coyote” as a person who is paid to transport people to the United States from Mexico.

       Camacho cites to Williamson v. State, 300 Ga. App. 538 (685 SE2d 784) (2009) to support his argument that the trial court erred in charging the jury on deliberate ignorance. In Williamson, this Court stated that “[a] court should not instruct a jury on deliberate ignorance when the evidence points to actual knowledge or no knowledge on the defendant’s part.” Id. at 549 (6), citing Schlei, 122 F3d at 973 (II) (D). However, as is apparent when comparing the language of Williamson and Schlei, as quoted in the body of this opinion, this Court omitted the word “only” in Williamson, possibly creating confusion on the issue of when it is appropriate for the trial court to give a jury charge on deliberate ignorance. Accordingly, we reiterate that a trial court should not instruct a jury on deliberate ignorance when the evidence presented at trial only points to either actual knowledge or no knowledge on the part of the defendant and take this opportunity to clarify our statement in Williamson and those cases relying on Williamson. See McCullough, 330 Ga. App. at 721 (1); Hutchins v. State, 326 Ga. App. 250, 259 (3) (756 SE2d 347) (2014); Able, 312 Ga. App. at 258 (3).


author: Dillard, Chief Judge.

text:
    A15A2275.
    ELLIOTT v. RESURGENS, P.C. et al.
    (804 SE2d 696)
    Decided August 28, 2017.

      Andy Clark Law, M. Andrew Clark; Eric J. Hertz, PC., Eric J. Hertz, for appellant.

      Weathington Smith, PaulE. Weathington, C. Matthew Smith, for appellees.
   Dillard, Chief Judge.

In Resurgens, P.C. v. Elliott, 301 Ga. 589 (800 SE2d 580) (2017), the Supreme Court of Georgia reversed our previous decision in Elliott v. Resurgens, P.C., 336 Ga. App. 217 (782 SE2d 867) (2016), in which we reversed a jury verdict in favor of Resurgens, P.C. d/b/a Resurgens Orthopedics and Tapan K. Daftari, M.D., in Sean Elliott’s medical-malpractice action against them. Specifically, the Supreme Court of Georgia disagreed with our conclusion that the trial court’s exclusion of certain witness testimony required reversal of the jury’s verdict and held that the judgment below should be affirmed. Accordingly, we adopt the judgment of the Supreme Court of Georgia as our own, and affirm the trial court’s judgment.

Judgment affirmed.

Ellington, P. J., and Mercier, J., concur.


author: Ellington, Presiding Judge.

text:
    A17A1198.
    SZOPINSKI v. THE STATE.
    (804 SE2d 657)
   Ellington, Presiding Judge.

A Forsyth County jury found Nancy Szopinski guilty of driving under the influence of alcohol to the extent that she was a less safe driver, OCGA § 40-6-391 (a) (1); and failure to maintain her lane of travel, OCGA § 40-6-48 (1). She appeals from the denial of her motion for a new trial, contending that the trial court erred in admitting evidence of her refusal to take a chemical test measuring her blood alcohol level and in allowing the State to comment on her “failure to come forward” with evidence. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that around 4:00 a.m. on July 10, 2014, an officer observed a black Cadillac moving backward, away from a red light. When the light turned green, the driver drove forward and then turned left, crossing the fog line several times. The officer stopped the driver, whom he identified as Szopinski. Szopinski told the officer that her weaving was the result of having something in her eye. The officer smelled the odor of an alcoholic beverage coming from inside the car, and he noticed that Szopinski’s eyes were bloodshot and watery. Szopinski admitted that she had consumed a couple of beers. Based on these observations, the officer conducted a DUI investigation and asked Szopinski to perform voluntary field sobriety tests. Szopinski did poorly on the field sobriety tests, and she refused to give a preliminary breath test. Given her admissions and the results of the field sobriety tests, the officer arrested Szopinski for driving under the influence of alcohol.

Thereafter, the officer read verbatim from his card the Georgia implied consent warning for persons age 21 and over. Szopinski agreed to take a state-administered breath test measuring her blood alcohol. On the way to the jail, Szopinski asked questions regarding the state-administered test. The officer reiterated that the test was voluntary. The officer testified that, once they arrived at the jail, Szopinski refused to take the state-administered test.

At trial, Szopinski testified that she had consumed two beers several hours prior to driving. She admitted that, after her arrest, she had consented to a state-administered breath test. She also testified that she wanted to take the test. She claimed, however, that when she arrived at the jail, the police denied her the opportunity to take the test. She also testified that she had failed to maintain her lane because she had something in her eye and she was looking at her phone. On cross-examination, Szopinski admitted that she had not told the arresting officer that, in addition to having something in her eye, she had also been looking at her phone to read an old text message.

1. Szopinski contends that the trial court erred in allowing the jury to hear testimony that she had refused to take the state-administered breath test. She argues that her refusal was made upon reliance of her Fourth Amendment rights and, therefore, may not be used as evidence of her guilt. Because Szopinski’s refusal was not made in reliance upon a constitutional right, but, rather, a qualified right created by the legislature, this claim of error is without merit.

Generally, the State may control the operation of motor vehicles upon its public roads and highways and, pursuant to its police powers, may impose reasonable requirements on drivers. See Ward v. State, 188 Ga. App. 372-373 (1) (373 SE2d 65) (1988). Given that impaired drivers constitute “a direct and immediate threat to the welfare and safety of the general public[,]” Georgia law provides, in relevant part, that

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug, if arrested for any offense arising out of acts alleged to have been committed in violation of Code Section 40-6-391 or if such person is involved in any traffic accident resulting in serious injuries or fatalities.

(Emphasis supplied.) OCGA § 40-5-55 (a). OCGA § 40-6-392 (d) provides: “In any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him.”

“The right to refuse to submit to state administered testing is not a constitutional right, but one created by the legislature.” (Citation omitted.) Klink v. State, 272 Ga. 605, 606 (1) (533 SE2d 92) (2000). Although Szopinski had a right to refuse a state-administered chemical test under Georgia law, the exercise of that right was not without consequences. As we have explained, “[t]he implied consent statute grants drivers the right to refuse to take a state-administered test, with one of the consequences of exercising that right being that evidence of such refusal is admissible at trial.” Williams v. State, 297 Ga. App. 626, 628 (677 SE2d 773) (2009). See also Hynes v. State, 341 Ga. App. 500, 508 (801 SE2d 306) (2017) (“The case law interpreting implied consent laws demonstrates that the judiciary overwhelmingly sanctions the use of civil penalties and evidentiary consequences against DUI suspects who refuse to comply.”). Thus, the trial court did not err in admitting the evidence of Szopinski’s refusal to take the state-administered breath test.

2. Szopinski also contends that the trial court erred in allowing the State to comment during closing argument on Szopinski’s alleged failure to come forward with evidence in her defense. Because the record does not support this claim of error, we find it to be without merit.

Szopinski testified that she initially told the arresting officer that she had failed to maintain her lane because she had something in her eye. On the stand, she also claimed that her weaving was due to her “multitasking,” that she had been reading an old text message on her phone. The solicitor-general cross-examined Szopinski about this inconsistency, and Szopinski said that she did not mention looking at her phone because “[njothing was asked about it.” During closing, as part of an argument suggesting that it was incredible that Szopinski had decided to read an old text with something in her eye while turning left, the solicitor-general stated: “[Ijt’s the first time she’s ever said it to anybody ... [T] hat’s the first time she’s ever given that story.” It is clear from the record that the solicitor-general was not commenting on Szopinski’s failure to come forward with evidence; rather, he was arguing that the jury could infer from the inconsistencies in her statements that Szopinski was making up a story to explain away her drunk driving, argument which the law allows. See Bradford v. State, 299 Ga. 880, 887-888 (7) (792 SE2d 684) (2016) (“[Tjhe prosecutor’s line of questioning permissibly explored the inconsistencies between appellant’s trial testimony and his prior statements made to civilians on the scene and the police soon after the shooting.”) (citation omitted). Thus, we find no merit in this claim of error.

Judgment affirmed.

Andrews and Rickman, JJ., concur.

Decided August 9, 2017

Reconsideration denied August 29, 2017

Banks, Stubbs & McFarland, Rafe Banks III, for appellant.

William A. Finch, Solicitor-General, Caroline Yi, Assistant Solicitor-General, for appellee.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Szopinski’s reliance on Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015), is misplaced. That case addressed the standards to be applied when evaluating whether to adm it evidence of a defendant’s blood alcohol content obtained through state-administered chemical testing. The Supreme Court in Williams noted that a warrantless search is constitutional only if exigent circumstances are present or the suspect consents to the search, and “mere compliance with statutory implied consent requirements does not, per se, equate to actual, and therefore voluntary, consent on the part of the suspect so as to be an exception to the constitutional mandate of a warrant.” Id. at 822. Whether a defendant has given actual consent to the procuring and testing of his or her blood requires a determination of the voluntariness of the consent under the totality of the circumstances. Id. at 823. While the reasoning in Williams “may have substantially eroded Klink’s analytical foundation, . . . [the case] nevertheless remains binding authority over this Court unless and until it is overturned by our Supreme Court.” (Citations omitted.) McKibben v. State, 340 Ga.App. 89, 92, n. 10 (796 SE2d 478) (2017).

       The Supreme Court of Georgia has consistently held since 1991 that a comment upon a defendant’s silence or failure to come forward will not be allowed, even where the defendant takes the stand in his or her own defense. Sanders v. State, 290 Ga. 637, 640 (4) (723 SE2d 436) (2012).


author: Bethel, Judge.

text:
    A17A1034.
    In the Interest of H. G. D. et al., children.
    (803 SE2d 788)
   Bethel, Judge.

James and Gena Clark, grandparents of two children, H. G. D. andH. D., appeal following the juvenile court’s entry of apermanency order and its denial of their motions to intervene and for custody The Clarks argue ten separate enumerations of error by the juvenile court. In short, they argue that the juvenile court erred by: (1) changing the case number on the removal and protective hearing orders to make them part of the pending dependency action; (2) holding a permanency hearing and awarding the Thomas County Division of Family and Children Services (“DFCS”) custody; (3) splitting physical and legal custody of the children; and (4) denying their motion to intervene. We disagree and affirm for the following reasons.

The record reflects that the Department of Human Services filed dependency actions following a finding that the home H. G. D. and H. D. shared with their mother was filthy, that the mother was abusing methamphetamine, and domestic violence had been reported between the mother and her boyfriend. The children were removed to live with their maternal grandparents, the Clarks. However, while living with the Clarks, H. G. D. and H. D. began suffering from behavioral outbursts that necessitated a protective hearing. In particular, H. D., who was nine years old at the time, admitted to trying to harm or kill herself. She was later admitted to a mental health hospital. Additionally, hospital staff observed Mrs. Clark hitting H. G. D., who was three years old, and allowing H. D. to be physically abusive to H. G. D.

Following these incidents, on July 8, 2016, the juvenile court removed H. G. D. and H. D. from the custody of the Clarks and gave DFCS temporary custody. After H. D.’s release from the hospital, H. D. and H. G. D. were placed separately in local foster homes and visitation was suspended with their mother and the Clarks. H. D. has continued to suffer from suicidal ideation and self-harming behaviors and has been recommended for intensive psychiatric therapy. H. G. D. has begun pre-kindergarten, and his foster parents and teachers report no academic or behavioral issues.

Following these placements, the Clarks filed a motion for custody with the juvenile court alleging that DFCS had failed to file a dependency action against them. They also filed a motion to intervene in the permanency action regarding the children. At the permanency hearing on August 12, 2016, which the Clarks attended, the juvenile court determined that the safest placement for the children would be in DFCS custody. The juvenile court denied the Clarks’ motion to intervene based on lack of standing and denied them custody of the children based on the evidence presented at the hearing that necessitated their removal from the custody of the Clarks in the first instance. This appeal followed.

1. The Clarks first argue that the juvenile court erred by changing the case number on the removal and protective hearing orders to make them part of the pending dependency actions. The Clarks argue that the removal order and protective hearing order appearing under the revised case numbers are void and should not be considered by this Court because the petitions for dependency resulting in these orders were filed under different case numbers. They further argue that the juvenile court cannot “circumvent the docketing system,” that it lacks valid grounds for modifying the orders, and it did not comply with the notice and hearing requirement set forth in OCGA § 15-11-32 (f). We disagree.

OCGA § 15-11-32 (f) requires the court to hold a hearing when a petition seeking relief under OCGA § 15-11-32 is filed. See OCGA § 15-11-32 (f). However, none of the parties filed a petition seeking relief under OCGA § 15-ll-32;thusahearingunderOCGA § 15-11-32 (f) was not required. Rather, DFCS filed a dependency complaint with the juvenile court so as to notify it of the problematic circumstances the children were facing while in the temporary custody of their grandparents, the Clarks. The juvenile court removed the children from the custody of the Clarks and, after a preliminary protective hearing (which the Clarks attended), awarded custody of the children to DFCS. The case numbers on both the dependency removal order and preliminary protective hearing order were changed, nunc pro tunc, so as to be made part of the existing case of dependency. The juvenile court’s change to the temporary custody arrangement thus operated as a change to its earlier order finding the children dependent and awarding the Clarks temporary custody. The juvenile court has the inherent authority to change, vacate, or modify its earlier temporary custody order if it found that doing so would be in the best interest of H. G. D. and H. D. See OCGA § 15-11-32 (b); In the Interest of A. V. B., 222 Ga. App. 241, 244 (2) (474 SE2d 114) (1996); In the Interest of K. B., 188 Ga. App. 199, 200 (2) (372 SE2d 476) (1988). The evidence in the record supports the juvenile court’s finding that it was no longer in the best interest of the children to remain in the custody of the Clarks, and the juvenile court was authorized to change its order regarding temporary custody We find no error here.

2. (a) The Clarks next argue that the juvenile court erred by holding a permanency hearing and entering an order awarding DFCS custody of the children. The Clarks suggest that there was a gap of approximately eight days during which the children were technically no longer in the care of DFCS because the complaints (which were initially filed under different case numbers) regarding the condition of the children under the Clarks’ care were dismissed before custody was given to DFCS at the permanency hearing. And because the children were not technically in DFCS custody, the Clarks argue the juvenile court could not have a permanency hearing. The Clarks misunderstand the facts of this case.

The order removing the children from the Clarks’ custody was filed on July 8, 2016. A preliminary protective hearing was held on July 11, 2016, whereby the children were found to be dependent and were placed in DFCS custody. On August 4, 2016, the juvenile court amended the case numbers on these orders so as to make them part of the existing case of dependency. That same day, the juvenile court dismissed the dependency complaint that was filed under a separate case number. Thus, the children remained in DFCS custody continuously, and the juvenile court did not err when it held the permanency hearing on August 12, 2016. The Clarks’ argument therefore lacks merit.

(b) The Clarks further argue that a juvenile court may only remove a child from temporary custody where the child’s parent completes the case plan or where the child is found dependent under the care of a temporary custodian, neither of which occurred here. Even if we were to assume, arguendo, that the Clarks’ assertion is correct, the children were found dependent in the temporary custody of the Clarks at the July 11,2016 hearing. Thus, we find this assertion of error meritless as well.

(c) The Clarks argue that the juvenile court failed to comply with the order and hearing requirements set forth in OCGA § 15-11-181 and that a separate dependency hearing and order should have been entered with respect to their care of the children. But the children had already been found dependent and had been placed in the temporary custody of the Clarks because of their dependency The juvenile court was not required to find the children dependent once more before changing its order regarding temporary custody of the children. Rather, pursuant to OCGA § 15-11-32 (b), the juvenile court could do so where it found the change to be in the best interest of the children.

Temporary custody is just that — temporary A temporary custody award differs “in its nature and purpose from an award of permanent custody. The temporary award is intended to create an interim arrangement that serves the best interests of the child pending adjudication of the rights of the mother and father.” Pace v. Pace, 287 Ga. 899, 900 (700 SE2d 571) (2010) (citations and punctuation omitted). Once a child has been adjudicated dependent and until permanent placement is established, the children are the responsibility of the court, and the court places them temporarily until a permanent placement can be found. Therefore, we cannot say that the juvenile court erred here.

3. The Clarks argue next that the juvenile court erred by giving DFCS physical custody of the children when it had already awarded legal custody to the Clarks. The Clarks are mistaken. The Clarks were given temporary physical and legal custody of the children on March 16, 2016. However the Clarks’ physical and legal custody was terminated when the children were removed from their care via court order on July 8, 2016. Physical and legal custody of the children was then transferred to DFCS the same day by the same order terminating the Clarks’ custody of the children. This enumeration is without merit.

4. Finally, the Clarks argue that the juvenile court erred in denying their motion to intervene because their status as “legal custodians” made them parties to the case, or at least granted them a right to intervene under OCGA § 9-11-24 (a). The Clarks further assert that they have a claim or defense that raises a common question of law or fact because the children were removed from their home based on Mrs. Clark’s conduct and that they should have been granted a permissive intervention under OCGA § 9-11-24 (b). We disagree.

OCGA § 9-11-24 (a) (1) provides that an individual shall be permitted to intervene upon a timely application “[wjhen a statute confers an unconditional right to intervene^]” The Clarks claim that their statutory right to intervene arises from their status as parties to the case, as that term is defined in OCGA § 15-11-2 (52). But OCGA § 15-11-2 (52), which defines a party to include a legal custodian, does not confer an “unconditional right to intervene”; rather, it merely defines a term. Moreover, at the time the Clarks filed their motion to intervene, they were no longer temporary legal custodians of the children because their custody of the children had been terminated eight days prior. Because the Clarks fail to point to any statute conferring upon them an “unconditional right to intervene,” their argument that the juvenile court wrongly denied them their right to intervene in the dependency action is without merit.

Decided August 8, 2017

Reconsideration denied August 30, 2017

Kelley & Snow, Heath C. Bassett, for appellant.

Christopher M. Carr, Attorney General, Annette M. Cowart, Deputy Attorney General, Shalen S. Nelson, Penny L. Hannah, Sen ior Assistant Attorneys General, A. William Clark, Assistant Attorney General, for appellee.

OCGA § 9-11-24 (b) (2) provides that an individual may intervene “[w]hen an applicant’s claim or defense and the main action have a question of law or fact in common.” The Clarks argue that their claim or defense shares a common question of law or fact with the underlying dependency action because Mrs. Clark’s behavior toward the children was the basis for the children’s removal from their temporary custody However, the underlying dependency action is a determination of the children’s status in their mother’s care. The Clarks’ intervention in the case will not affect whether the mother can demonstrate that she is capable of caring for her children. As such, the juvenile court did not err in denying the Clarks’ motion to intervene.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

       The dependency actions were given case numbers 136-16J-017 and 018.

       The removal order was initially given different case numbers from the existing cases of dependency, but it was amended to be made part of the existing cases.


text:
    A15A1423.
    BURDETTE v. CHANDLER TELECOM, LLC et al.
    (804 SE2d 696)
   Dillard, Chief Judge.

In Chandler Telecom, LLC v. Burdette, 300 Ga. 626 (797 SE2d 93) (2017), the Supreme Court of Georgia reversed our previous decision in Burdette v. Chandler Telecom, LLC, 335 Ga. App. 190 (779 SE2d 75) (2015), and remanded the case to this Court with direction that we remand it to the trial court for further proceedings not inconsistent with our Supreme Court’s opinion. Accordingly, we adopt the judgment of the Supreme Court of Georgia as our own, vacate the trial court’s decision, and remand the case for further proceedings consistent with the opinion of our Supreme Court.

Decided August 30, 2017.

Witcher Law Firm, Daniel B. Greenfield, for appellant.

Hamilton, Westby, Antonowich & Anderson, Andrew G. Daugherty, for appellees.

Perkins Law Firm, C. Jason Perkins, amicus curiae.

Judgment vacated, and case remanded with direction.

Ellington, P. J., and McFadden, P. J., concur.