author: MILLER, Presiding Judge.

text:
    A12A2057.
    ACREE v. THE STATE.
    (737 SE2d 103)
   MILLER, Presiding Judge.

Following a bench trial, William Garrett Aeree was convicted of driving under the influence of alcohol to the extent he was a less safe driver (“DUI-less safe” OCGA § 40-6-391 (a) (1)) and failure to maintain lane (OCGA § 40-6-48 (1)). Aeree filed a motion for new trial, which the trial court denied. On appeal, Aeree contends that the trial court erred in denying his motion to suppress because the police officer lacked a reasonable suspicion to justify the traffic stop. Aeree also argues that the traffic stop was unconstitutional because he did not commit a traffic violation. For the reasons that follow, we affirm.

In ruling upon a motion to suppress, the trial judge is the trier of fact, having sole province of determining witness credibility and resolving evidentiary conflicts or inconsistencies. On appeal, we construe the evidence in a light favorable to upholding the lower court’s findings, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. However, we apply a de novo standard of review to the trial court’s application of law to those facts that are undisputed.

(Citations and punctuation omitted.) Hall v. State, 310 Ga. App. 397 (714 SE2d 7) (2011).

So viewed, the evidence shows that on the night of April 19,2008, an officer with the Forsyth County Sheriff’s Department was traveling on the roadway when he noticed Acree’s vehicle having difficulty maintaining its lane. The officer observed that Acree’s vehicle’s tires crossed the white fog lines on the right-hand side of the road. The officer activated the camera in his patrol car and continued to follow Aeree. The officer then observed Acree’s vehicle cross the solid double yellow line. The officer initiated a traffic stop based upon Acree’s failure to maintain lane.

When the officer approached Aeree, the officer detected an odor of alcohol coming from the vehicle. Acree’s speech was slurred, and he appeared to be unsteady as he exited the vehicle and walked. Aeree failed the field sobriety tests administered to him. Aeree was arrested and convicted of DUI-less safe and failure to maintain lane.

On appeal, Aeree contends that the trial court erred in denying his motion to suppress because the officer lacked a reasonable suspicion to conduct the traffic stop. We disagree.

To initiate a traffic stop, “an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Punctuation omitted.) State v. Simmons, 283 Ga. App. 141, 143 (640 SE2d 709) (2006). “A traffic offense provides the necessary facts for such reasonable suspicion. When an officer witnesses a traffic offense, a resulting traffic stop does not violate the Fourth Amendment, regardless of the officer’s motives for initiating the stop.” (Punctuation omitted.) Id.

Here, there was evidence that Aeree failed to maintain his lane. “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety[.]” OCGA § 40-6-48 (1). The officer testified that before he activated the camera in his patrol car, he observed Acree’s vehicle’s tires cross the white fog line on the right-hand side of the road. Aeree argues that the officer’s testimony was not credible and that the officer did not have a sufficient basis to initiate the traffic stop because a video recording showed that his vehicle’s tires only briefly touched the centerline. In denying Acree’s motion to suppress, the trial court found that the officer’s testimony and the video established a sufficient basis to justify the stop. The trial court, as the trier of fact, had the sole province of determining the credibility of witnesses and resolving any conflicts or inconsistencies in the evidence. See O’Neal v. State, 311 Ga. App. 102 (714 SE2d 744) (2011). Based on the officer’s testimony, the trial court was authorized to conclude that the officer had a reasonable suspicion to initiate a traffic stop. See Polk v. State, 305 Ga. App. 677, 679 (700 SE2d 839) (2010) (officer was authorized to stop driver for failing to maintain lane when driver crossed over centerline and broke outermost edge of the centerline). Moreover, our review of the videotape confirms the trial court’s finding that the stop by the police officer was justified. The videotape shows that Aeree touched the centerline, drifted back, and then touched the right fog line. Acree’s weaving justified a stop under OCGA § 40-6-48 (1). See Polk, supra, 305 Ga. App. at 679 (officer’s stop of defendant was authorized where evidence showed that defendant weaved within his lane of travel); Steinberg v. State, 286 Ga. App. 417, 419 (1) (650 SE2d 268) (2007) (“weaving without reason into nearby lanes violates OCGA § 40-6-48 (1) and justifies a stop”) (punctuation and footnote omitted). Since the officer had a reasonable suspicion that Aeree violated OCGA § 40-6-48 (1), the stop was justified, and the trial court did not err in denying Acree’s motion to suppress.

Decided February 8, 2013

Reconsideration denied February 22, 2013.

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

Leslie C. Abernathy, Solicitor-General, Amy M. Radley, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Ray and Branch, JJ., concur.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A13A0604.
    MAPP v. WE CARE TRANSPORTATION SERVICES, INC. et al.
    (738 SE2d 97)
   BARNES, Presiding Judge.

We granted the application for discretionary appeal filed by Gladys E. Mapp, as representative of the estate of Vera L. Travis, and upon review, we affirm the trial court.

Mapp filed a renewed complaint against We Care Transportation Services, Inc., Southeastrans, Inc., and Alvin A. Haadee, alleging they were liable for causing injuries to Travis which resulted in her death. The trial court dismissed the complaint. Mapp is appealing the trial court’s denial of her motion for an out-of-time appeal or, alternatively, to set aside the order dismissing her complaint. However, we have previously considered the merits of the trial court’s dismissal in Mapp v. We Care Transp. Svcs., 311 Ga. App. 879 (717 SE2d 263) (2011). We noted in Mapp that the party asserting error had the burden of providing this court with a sufficient record to enable it to review the error. Because the appellate record did not include a copy of the complaint, we were required to assume that the trial court ruled correctly, and we affirmed the dismissal. Id. at 879-880.

Decided February 1, 2013

Reconsideration denied February 22, 2013

Michael B. King, for appellant.

Michael R Bain, for appellee.

After this case was remitted to the trial court, Mapp filed her motion for an out-of-time appeal or to set aside the dismissal order. The parties briefed the issue, and after a hearing at which Mapp did not appear, the trial court denied the motion. Mapp appeals the denial of her motion for an out-of-time appeal or to set aside the dismissal, arguing that the trial court abused its discretion because she never received notice of the hearing.

First, “we note that although the superior court may grant an out-of-time appeal in a criminal case, such relief is not available in a civil case such as this.” Register v. Elliott, 285 Ga. App. 741, 744 (647 SE2d 406) (2007). Nevertheless, pretermitting whether or not Mapp was served with notice of the hearing on her motion, we note that the order Mapp sought to set aside “has been affirmed by this Court, as noted above, and is now the law of the case in this matter.” Rice v. Lost Mountain Homeowners Assn., 288 Ga. App. 714 (1) (655 SE2d 214) (2007). “[A]ny ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” OCGA § 9-11-60 (h).

Upon the remittitur from the appellate court being filed in the trial court, the issue is res judicata, and the lower court has no authority to allow the movant to amend his motion. Nor can it hear further evidence or consider any other matter that would otherwise affect the finality of the judgment of this court. The only action which that court had authority or power to take was to make the judgment of this court the judgment of the trial court and to enter an order [reflecting this court’s decision].

Shepherd v. Shepherd, 243 Ga. 253, 254-255 (253 SE2d 696) (1979). Accordingly, the trial court’s order is affirmed.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Mapp as the estate administrator initially brought this claim in Henry County for Travis’s pre-death pain and suffering and medical expenses, along with the claims of Vera Travis’s four children for wrongful death. The trial court denied the defendants’ motion for summary judgment as to Mapp’s claims, and Mapp subsequently dismissed her portion of the complaint without prejudice. The court granted summary judgment to the defendants on the children’s wrongful death claim, and they appealed. The trial court then granted the defendants’ motion to dismiss the appeal because the children failed to pay the cost of preparing the appellate record, and they appealed that order. This court affirmed the dismissal as to two of the children but reversed as to the other two and remanded for the trial court to determine the truth of their affidavits of indigency. Mapp v. We Care Transp. Svcs., 314 Ga. App. 391 (724 SE2d 790) (2012). We also previously denied the plaintiffs’ application to appeal the Henry County state trial court’s attorney fee award to the defendants under OCGA § 9-15-14 in application number A11D0112. We do not consider here whether any of Mapp’s claims in this case are subject to collateral estoppel rules.


author: Miller, Presiding Judge.

text:
    A12A1828.
    RAINEY v. THE STATE.
    (738 SE2d 685)
   Miller, Presiding Judge.

Following a jury trial, Kenneth Shamar Rainey was convicted of criminal attempt to traffic in cocaine (OCGA §§ 16-13-31 (a) (1), 16-13-33), criminal attempt to traffic in marijuana (OCGA §§ 16-13-31 (c), 16-13-33), and possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (5)). The trial court denied Rainey’s motion for new trial. On appeal, Rainey contends that (i) the evidence was insufficient to sustain his convictions; (ii) the trial court erred in admitting hearsay evidence; and (iii) his trial counsel provided ineffective assistance by failing to object to inadmissible hearsay evidence. We discern no error and affirm.

“On appeal from a criminal conviction, we no longer presume the defendant is innocent, and we view the evidence in the light most favorable to the jury’s verdict.” (Citation omitted.) Green v. State, 298 Ga. App. 17, 18 (679 SE2d 348) (2009).

So viewed, the trial evidence shows that on June 13, 2007, an undercover officer assigned to the Fayette County Drug Suppression Task Force received information from an informant that an individual named “Braids” was interested in purchasing 25 pounds of marijuana. Using the information supplied by the informant, the officer, posing as a drug dealer, contacted “Braids” and made arrangements for the drug transaction. During the course of their discussions, “Braids” also negotiated to purchase one kilogram of cocaine from the officer. “Braids” and the officer agreed to meet later that afternoon at a gas station located in Fayette County.

The officer arranged to have the meeting recorded by audio and videotape. After arriving at the designated location, “Braids” confirmed that he was present at the gas pumps and then pulled his vehicle beside the officer’s vehicle. The officer observed that the vehicle had three occupants, who were later identified as Rainey and his co-conspirators, James Riley Ponder and Randy Wayne Sims. Ponder drove the vehicle, Sims occupied the front passenger seat, and Rainey occupied the back passenger seat. The officer identified Ponder as being “Braids” since he matched the description given by the informant.

Rainey’s co-conspirator, Sims, approached the officer’s vehicle and examined the drugs for the transaction. The officer cut open the packaging and displayed the 25-pound brick of marijuana and the compressed kilogram of cocaine. Sims tested a sample of the cocaine and gave his approval, stating “everything’s good.”

The officer then asked to see the money for the transaction. The officer followed Sims to the rear passenger side of the vehicle, where Rainey was waiting. Upon receiving Sims’s instruction, Rainey opened a t-shirt and showed the officer a bundle of money. Rainey also pulled another stack of money from the waistband of his pants and showed it to the officer. Rainey and his co-conspirators advised the officer that they had more money, but insisted that the officer follow them to a dealership in Union City to complete the drug transaction because they did not feel comfortable at the present location.

The officer refused to leave the Fayette County jurisdiction to make the drug transaction. At that time, the officer instead gave his fellow undercover officers a verbal signal to move in and effect the arrests of Rainey and his co-conspirators.

Following the arrests, the officers searched the vehicle that Rainey and his co-conspirators had occupied. During a search of the back passenger seat where Rainey had been seated, the officers found a loaded .40 caliber semi-automatic pistol. An officer testified that the pistol was loosely placed under the seat cushion in a manner that caused the cushion to curve up, and that the pistol was easily accessible and noticeable. The officers also recovered $8,602 from inside the vehicle.

Rainey and his co-conspirators were jointly charged with the offenses of attempted trafficking in cocaine and marijuana. Rainey was separately charged with the offense of possession of a firearm during the commission of a crime. Prior to trial, Rainey’s co-conspirators pled guilty to the drug offenses. Rainey proceeded to trial. During the trial, the videotape depicting the attempted drug transaction was admitted into evidence and was shown to the jury. The jury found Rainey guilty of the drug and weapon offenses.

1. Rainey contends that evidence was insufficient to sustain his convictions. We disagree.

(a) Attempted Trafficking in Cocaine and Marijuana.

An individual commits the offense of attempt when with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. The act must be more than mere preparation, but it can not accurately be said that no preparations can amount to an attempt. The question, then, is one of degree, depending upon the circumstances of each case.

(Punctuation and footnotes omitted.) Davenport v. State, 308 Ga. App. 140, 143 (1) (a) (706 SE2d 757) (2011). Here, Rainey was charged with attempted trafficking in cocaine, which required proof that he attempted to knowingly possess twenty-eight grams or more of cocaine or any mixture with a purity of ten percent or more of cocaine. SeeOCGA §§ 16-13-31 (a) (1) (defining trafficking in cocaine), 16-13-33 (defining criminal attempt). Rainey also was charged with attempted trafficking in marijuana, which required proof that he attempted to knowingly possess a quantity of marijuana exceeding ten pounds. See OCGA §§ 16-13-31 (c) (defining trafficking in marijuana), 16-13-33 (defining criminal attempt).

Under Georgia law, a defendant is culpable for the consequences of his co-defendant’s acts under the theory of conspiracy if he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy. A conspiracy is an agreement between two or more persons to do an unlawful act, and the existence of a conspiracy may be established by proof of acts and conduct, as well as by proof of an express agreement. When persons associate themselves in an unlawful enterprise, any act done by any party to the conspiracy to further the unlawful enterprise is considered to be the act of all the conspirators.

(Citations and punctuation omitted.) Johnson v. State, 299 Ga. App. 706, 707-708 (1) (a) (683 SE2d 659) (2009). “Presence, companionship and conduct before and after the commission of the alleged offenses may be considered by the jury and are circumstances which may give rise to an inference of the existence of a conspiracy.” (Citations and punctuation omitted.) Burnette v. State, 241 Ga. App. 682, 683-684 (1) (527 SE2d 276) (1999).

Likewise, a defendant may be convicted as a party to a crime if he intentionally aids and abets the commission of a crime. See Johnson, supra, 299 Ga. App. at 708 (1) (a). “Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.” (Citations and punctuation omitted.) Id.

Based upon the evidence of Rainey’s companionship and conduct during the attempted drug transaction, the jury was authorized to find that Rainey had engaged in a conspiracy with Ponder and Sims to commit the drug offenses. The trial evidence established that Rainey and his co-conspirators had arranged and attempted to purchase one kilogram, which exceeded twenty-eight grams, of cocaine from the undercover officer. Rainey and his co-conspirators also had attempted to purchase 25 pounds of marijuana from the undercover officer during the same transaction. The trial evidence further showed that Rainey took substantial steps and actively participated as a party to the attempted drug offenses by traveling with his co-conspirators to meet the undercover officer at the designated location and at the arranged time for the purpose of conducting the transaction, and by showing the undercover officer bundles of money to be used toward the drug purchases.

During the attempted drug transaction, Rainey’s co-conspirator examined and approved the packages of cocaine and marijuana. Subsequent testing confirmed that the drug substance in one of the packages was cocaine with a purity of 76.4 percent and weighing approximately 991.48 grams. Testing also confirmed that the drug substance in the other package was marijuana weighing approximately 29 pounds.

Based upon the combined evidence, including Rainey’s active participation in the conspiracy to purchase the large quantities of cocaine and marijuana, the jury was authorized to find Rainey guilty beyond a reasonable doubt of the attempted trafficking in cocaine and marijuana offenses. See Green, supra, 298 Ga. App. at 20-22 (1) (affirming a defendant’s conviction for attempted trafficking in marijuana based upon evidence that he provided money to purchase the drugs and accompanied his co-defendants to the arranged location for the drug deal, which established his participation as a party to the crime); Toney v. State, 304 Ga. App. 25, 29 (3) (695 SE2d 355) (2010) (affirming a defendant’s attempted drug trafficking conviction based upon evidence that he had met the undercover agent and paid funds to purchase a large quantity of drugs).

(b) Possession of a Firearm During the Commission of a Crime. Rainey further contends that the evidence was insufficient to support his conviction for possession of a firearm during the commission of a crime. Again, we disagree.

Any person who shall have on or within arm’s reach of his or her person a firearm . . . during the commission of, or the attempt to commit... [a]ny crime involving the trafficking of cocaine, marijuana, or illegal drugs as provided in Code Section 16-13-31, and which crime is a felony, commits a felony [.]

OCGA § 16-11-106 (b) (5).

[W]hen a defendant is charged under [OCGA § 16-11-106 (b) (5)], the evidence is sufficient to sustain a conviction when it is shown at trial that a firearm was within arm’s reach of the defendant at any point during the commission of the crime, thus giving the defendant immediate access to the weapon.

(Punctuation, footnotes and emphasis omitted.) Davenport, supra, 308 Ga. App. at 148 (1) (c). The jury may infer the defendant’s possession of the firearm from both circumstantial and direct evidence. See id.

The evidence showed that the officers recovered a loaded pistol from underneath the back seat where Rainey had been sitting during the attempted drug transaction. An officer testified that the pistol was loosely placed under the back seat cushion, and that the pistol was easily accessible and noticeable. Moreover, the jury had an opportunity to view the videotape depicting Rainey’s position in the back seat. The jury was authorized to determine from the officer’s testimony and their observations that the pistol was within Rainey’s arm’s reach during the commission of the drug crimes. See Davenport, supra, 308 Ga. App. at 148 (1) (c); Saulsberry v. State, 198 Ga. App. 707, 708-709 (402 SE2d 550) (1991).

2. Rainey also argues that the trial court erred in admitting hearsay statements of his co-conspirators. He claims that the admission of the hearsay statements violated his constitutional rights under the Confrontation Clause. Rainey’s claims are without merit.

Since Rainey’s trial occurred prior to January 1,2013, the former rules of evidence must be applied in analyzing the evidentiary claims presented in this case. Under the former provisions of OCGA § 24-3-5, “[ajfter the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”

To render an out-of-court statement admissible under [former] OCGA § 24-3-5, the prosecution need only show that it was made by a co-conspirator during an ongoing conspiracy with the defendant and that it bears sufficient indicia of reliability. The trial judge may admit [statements] by co-conspirators before the conspiracy has been proved, provided its existence is ultimately shown at trial. The question of the existence of a conspiracy is ultimately for the jury to determine. The existence of a common design or purpose between two or more persons to commit an unlawful act may be shown by direct or circumstantial evidence.

(Citations and punctuation omitted.) Womack v. State, 273 Ga. App. 300, 303 (2) (a) (614 SE2d 909) (2005). As stated in Division 1 (a) above, the evidence in this case was sufficient to authorize a finding that Rainey had participated in a conspiracy to commit the drug offenses. The challenged statements were made by Rainey’s co-conspirator while coordinating the drug transaction and in furtherance of the conspiracy. The evidence also established that the statements bore a sufficient indicia of reliability since Rainey and his co-conspirators arrived at the designated location at the agreed-upon time to conduct the drug transaction; Rainey’s co-conspirator examined the drugs; and Rainey showed the officer the bundles of money to be used toward the drug purchases. As such, the co-conspirator’s statements were admissible under the co-conspirator exception under former OCGA § 24-3-5. See Harris v. State, 255 Ga. 500, 501-502 (2) (340 SE2d 4) (1986).

Rainey nevertheless argues that the trial court erred in admitting the co-conspirator’s statements without giving a limiting instruction that the jury could not consider the statements unless it found that a conspiracy was proven beyond a reasonable doubt. See Toney, supra, 304 Ga. App. at 26-27 (1), n. 8 (comparing a case where the jury was given a cautionary charge to consider a co-conspirator’s out-of-court statements only if they found that a conspiracy existed at the time the statements were made); Harris, supra, 255 Ga. at 501 (2) (noting that the jury was given, before each witness testified, a cautionary instruction to consider the co-conspirator’s statement only if they found that a conspiracy had existed at the time that the statements were heard). Notably, however, Rainey did not request a limiting instruction on the jury’s consideration of the co-conspirator’s statements. Generally, a trial court’s failure to give a sua sponte limiting instruction as to evidentiary considerations does not constitute reversible error. See, e.g., Matthews v. State, 221 Ga. App. 129, 131 (3) (470 SE2d 518) (1996); Duren v. State, 177 Ga. App. 421, 423 (2) (339 SE2d 394) (1986). “[Bjecause [Rainey] failed to request that a limiting instruction be given, he cannot complain about its absence for the first time on appeal.” (Punctuation omitted.) Matthews, supra, 221 Ga. App. at 131 (3).

Moreover, notwithstanding the admissibility of the statements under the co-conspirator exception, the statements were alternatively admissible under the res gestae exception set forth in the former provisions of OCGA § 24-3-3. See Toney, supra, 304 Ga. App. at 27-28 (1). Based upon the applicable former rule, the surrounding circumstances constituting part of the res gestae could always be shown to the jury along with the principal fact. See id. Accordingly, acts and circumstances forming a part or continuation of the main transaction were generally admissible as res gestae. Id. Since the statements in this case were made during the planning phase and arrangements leading up to the attempted drug transaction, they were admissible under the former res gestae exception. See Toney, supra, 304 Ga. App. at 27-28 (1); Jones v. State, 294 Ga. App. 854, 855-856 (3) (670 SE2d 506) (2008); Brewer v. State, 224 Ga. App. 656, 659 (7) (481 SE2d 608) (1997).

Furthermore, contrary to Rainey’s assertion, the admission of the co-conspirator’s statements did not violate the Sixth Amendment’s Confrontation Clause under Crawford v. Washington, 541 U. S. 36, 68 (V) (C) (124 SC 1354, 158 LE2d 177) (2004), because the statements were not testimonial in nature. See Toney, supra, 304 Ga. App. at 28 (2). “Statements . . . are testimonial in nature when the primary purpose of the statements is to establish or prove past events potentially relevant to later criminal prosecution. . . . [Ojur courts have routinely held that statements made by co-conspirators during the conspiracy are not testimonial in nature.” (Punctuation and footnotes omitted.) Id. Here, the co-conspirator’s statements were made to the undercover officer while making arrangements and attempting to consummate the attempted drug transaction, which were prior to the arrests. “Such statements are not testimonial for purposes of Crawford.” (Footnote omitted.) Id. Since the co-conspirator’s statements were made during the conspiracy and were not testimonial for purposes of the Crawford analysis, Rainey’s challenge based upon the Confrontation Clause is without merit. See id.

3. Lastly, Rainey contends that his trial counsel provided ineffective assistance by failing to continuously object to the hearsay statements of his co-conspirator.

To establish a claim of ineffective assistance of counsel, [Rainey] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. There is a strong presumption that trial counsel’s assistance was adequate and that counsel’s decisions were made within the bounds of reasonable professional judgment. Moreover, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

Decided February 22, 2013.

Mark A. Begnaud, H. Bradford Morris, Jr., for appellant.

Scott L. Ballard, District Attorney, Jeremy M. Hayes, Robert W. Smith, Jr., Assistant District Attorneys, for appellee.

(Citation, punctuation and footnote omitted.) Owens v. State, 271 Ga. App. 365, 369-370 (5) (609 SE2d 670) (2005).

The record shows that when the officer began to testify about his conversations with Rainey’s co-conspirator while arranging the drug transaction, trial counsel interposed an objection. After conducting a bench conference to address the issue, the trial court overruled trial counsel’s objection. Although trial counsel requested a continuing objection to the line of questioning and testimony regarding the co-conspirator’s statements, the trial court denied the request and ruled that contemporaneous objections were required.

Notwithstanding Rainey’s contention that trial counsel failed to continuously object when his co-conspirator’s statements were subsequently referenced, no error has been shown. As an initial matter, Rainey has not cited to any subsequent instances in which trial counsel failed to object to the evidence. To the extent that Rainey has failed to include a specific reference to the transcript supporting this claim of error, we cannot consider his claim. “[Rainey] bears the burden of proving error affirmatively by the record. It is not the function of this court to cull the record on behalf of a party in search of instances of error.” (Citations and punctuation omitted.) Wade v. State, 305 Ga. App. 382, 383 (1) (700 SE2d 827) (2010). Otherwise, as previously stated in Division 2 above, the co-conspirator’s statements were admissible under the former provisions of OCGA §§ 24-3-3 and 24-3-5. Trial counsel was not ineffective for failing to make a merit-less or futile objection. See Jones, supra, 294 Ga. App. at 856 (3); Owens, supra, 271 Ga. App. at 370 (5).

Judgment affirmed.

Ray and Branch, JJ., concur.

       The former provisions of OCGA § 24-3-5 were in effect until January 1, 2013, when Georgia’s new rules of evidence became effective. See Ga. L. 2011, p. 99, § 2/HB 24. We nevertheless note that the new rules likewise provide for the admissibility of a statement made by a co-conspirator during the course and in furtherance of the conspiracy. See OCGA § 24-8-801 (d) (2) (E) (enacted by Ga. L. 2011, p. 99, § 2/HB 24).

       Although the trial court gave jury charges defining a conspiracy and advising the jury of their duty to determine whether a conspiracy existed, the trial court failed to give instructions regarding the evidentiary consideration of the co-conspirator’s statements.

       Prior to January 1, 2013, former OCGA § 24-3-3 provided that “[declarations accompanying an act, or so nearly connected therewith in time as to he free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.”


text:
    A12A1898.
    DURRANCE v. THE STATE.
    (738 SE2d 692)
   MILLER, Presiding Judge.

Following a jury trial, Jason Durrance was convicted of driving with an alcohol concentration exceeding 0.08 grams (“DUI per se” OCGA § 40-6-391 (a) (5)). Durrance filed a motion for new trial, which the trial court denied. On appeal, Durrance contends that the trial court erred in denying his motion to suppress the results of the breath test and the field sobriety examination. Durrance also contends that the trial court erred in allowing the State to cross-examine him and present evidence showing the severity of an argument he had with his wife prior to the DUI offense. Durrance also challenges the trial court’s sentence, contending that the trial court imposed probation conditions that were unduly restrictive and unrelated to his conviction. For the following reasons, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the night of February 25, 2011, Durrance’s wife called the police to report a domestic disturbance with Durrance. The officers were dispatched to a neighbor’s house where Durrance’s wife had fled. The officers were informed that Durrance may have had a weapon, and that they needed to park their vehicles a safe distance from the house in order to assess the situation. Since there was no shoulder on the road, the officers parked their vehicles in the roadway.

Several minutes after Durrance noticed the officers congregating in front of the neighbor’s residence, he drove to the officers’ location to determine why they were there. When Durrance stopped at the patrol vehicles, one officer explained to Durrance that they were responding to a call, and that they would move their vehicles as soon as they could to allow Durrance to pass. Durrance responded that his wife probably made the call. When the officer determined that Durrance was the suspect, he asked Durrance to shut off the vehicle’s engine, keep his hands in plain view, and exit the vehicle.

As soon as Durrance exited his vehicle, an officer detected a strong odor of alcohol coming from Durrance and the vehicle. The officer also noticed that Durrance was sluggish and off-balance, his eyes were bloodshot and watery, and his speech was slurred. Durrance admitted that he been drinking beer and vodka that night. Durrance failed some of the field sobriety tests administered to him, and he registered a positive alco-sensor test result. Durrance was arrested for DUI, was read the required implied consent notice, and agreed to give a State-administered breath sample on the Intoxilyzer 5000 device. The test results indicated that Durrance had blood alcohol concentration levels of 0.092 and 0.089.

Durrance was charged and convicted of DUI per se. Durrance appeals as follows.

1. Durrance contends that the trial court erred in denying his motion to suppress and argues that our review of the trial court’s ruling should be limited to evidence adduced at the suppression hearing. We disagree.

“When reviewing a trial court’s ruling on a motion to suppress, the evidence must be construed most favorably toward the court’s findings unless those findings are clearly erroneous.” (Citation and punctuation omitted.) Herring v. State, 279 Ga. App. 162 (630 SE2d 776) (2006). The trial court’s application of the law to undisputed facts is subject to de novo review. State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005).

Notwithstanding Durrance’s claim to the contrary, it is well settled that in reviewing a trial court’s decision on a motion to suppress, we may consider all relevant evidence of record, including evidence introduced at trial. See Pittman v. State, 286 Ga. App. 415, 416 (650 SE2d 302) (2007); see also Bonds v. State, 188 Ga. App. 135 (372 SE2d 448) (1988) (providing that we may consider all relevant evidence introduced at a pretrial hearing, an appropriate post-trial hearing, or at trial when reviewing the denial of motion to suppress). Applying this standard, we turn to address Durrance’s specific claims.

(a) Durrance argues that the trial court should have granted his motion to suppress because the police instituted an unauthorized roadblock. His claim lacks merit.

A roadblock is a checkpoint designed to stop drivers on a road for various purposes, including screening for impaired drivers and checking driver’s licenses. See Thomas v. State, 277 Ga. App. 88, 90 (625 SE2d 455) (2005).

Here, there is no evidence the police officers were conducting a roadblock. Rather, the officers were responding to an emergency call made by Durrance’s wife. Since the officers were advised that Durrance had a weapon, they parked their vehicles a safe distance away from the house in which the call was made. Although this required the officers to park their vehicles in the road, there was no evidence that the officers were purposefully stopping vehicles in order to screen drivers. Notably, an officer testified that approaching drivers could move around the patrol vehicles if they wished to continue down the road. In addition, when Durrance came upon the parked patrol vehicles, there is no evidence that the officers commanded Durrance to stop or otherwise indicated that he was not free to pass. As a result, Durrance has failed to demonstrate that the officers were conducting a roadblock.

(b) Durrance next argues that the police officers stopped him without reasonable suspicion. Again, his claim lacks merit.

[There are] three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.
A first-tier encounter never intrudes upon any constitutionally protected interest since the purpose of the Fourth Amendment is not to eliminate all contact between police and citizens, but simply to prevent arbitrary and oppressive police interference with the privacy and personal security of individual citizens. A second-tier encounter, on the other hand, may violate the Fourth Amendment if the officer briefly stops or seizes a citizen without a particularized and objective basis for suspecting that a citizen is involved in criminal activity. Moreover, a “seizure” within the meaning of the Fourth Amendment only occurs when, in view of all the circumstances surrounding the incident, a reasonable person believes that he is not free to leave.

(Citations, punctuation and footnotes omitted.) Chapman v. State, 279 Ga. App. 200, 201-202 (1) (630 SE2d 810) (2006).

Here, Durrance decided to drive to the officers’ location to determine why they were there. Durrance stopped at the parked patrol vehicles without being directed to do so. The officer approached Durrance’s stopped vehicle to inform Durrance of the situation, and the officer’s approach falls within the first-tier encounter. See Chapman, supra, 279 Ga. App. at 202 (1); see also In the Interest of A. A., 265 Ga. App. 369, 371-372 (1) (593 SE2d 891) (2004) (officer’s approach of stopped vehicle was a first-tier encounter despite the fact that officer’s vehicle was blocking the driveway). Additionally, the evidence shows that the officers would have allowed vehicles to pass, and there is no evidence showing that the officer either restrained Durrance’s movement by means of physical force or show of authority, or that the officer prevented Durrance from turning around and driving away during the initial encounter. Consequently, the officer did not need a reasonable suspicion to approach Durrance’s stopped vehicle. Chapman, supra, 279 Ga. App. at 202 (1).

(c) Durrance next contends that when he was asked to exit the vehicle and was questioned, the officers were required to provide him Miranda warnings because he was restrained to a degree associated with a formal arrest. We disagree.

An individual must be advised of his Miranda rights, including his right against self-incrimination, only after being taken into custody or otherwise deprived of his freedom of action in any significant way. A person is in custody for Miranda purposes if he has been formally arrested or restrained to the degree associated with a formal arrest. The test for determining whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary.... As a general rule, although a motorist is deprived of his freedom of action during a traffic stop, such detention is insufficient to trigger the rights set forth in Miranda. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.

(Citations and punctuation omitted.) Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010).

Here, Durrance was asked to exit the vehicle, keep his hands visible, and allow himself to be patted down for weapons after he identified himself as a suspect in the domestic violence investigation. These actions did not amount to a formal arrest. See State v. Kipple, 294 Ga. App. 420, 421-422 (1) (669 SE2d 185) (2008) (second-tier stop notwithstanding fact that officer ordered defendant out of the vehicle and conducted a pat-down search for personal safety). While Durrance correctly notes that he was not free to leave the scene at this point, he was not handcuffed or placed in the .patrol car when questioned about the domestic disturbance or his consumption of alcohol. Under these circumstances, the trial court was authorized to find that a reasonable person would believe that his freedom of action was only temporarily curtailed pending further investigation. See Waters, supra, 306 Ga. App. at 116 (1). The officers were not required to provide Durrance Miranda warnings during the preliminary investigation. Id.; see also Brown v. State, 299 Ga. App. 402, 404 (1) (683 SE2d 614) (2009).

(d) Durrance next contends that the trial court erred in denying his motion to suppress because the police officers lacked probable cause to arrest him for DUI. Again, we disagree.

The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility. To arrest a suspect for driving under the influence, an officer need only have knowledge or reasonably trustworthy information that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.

(Citation and punctuation omitted.) Frederick v. State, 270 Ga. App. 397, 398 (606 SE2d 615) (2004). “[P]robable cause to arrest for DUI-per se exists where an officer has a reasonable basis to believe that: (1) the suspect has, within the previous three hours, been in physical control of a moving vehicle; and (2) the suspect’s current blood alcohol concentration is greater than 0.08 grams.” (Citations and punctuation omitted.) State v. Risk, 295 Ga. App. 815, 817 (673 SE2d 259) (2009).

Although Durrance challenges the reliability of certain aspects of the field sobriety tests, the evidence clearly reveals that the officer had probable cause to arrest him for DUI even without the field sobriety tests. Significantly, the evidence reveals that the officer smelled an odor of alcohol on Durrance and observed that he was sluggish and off-balance, his eyes were bloodshot and watery, and his speech was slurred. See Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (“Even in the absence of the field sobriety tests, the officer’s observation that [the defendant] had bloodshot, watery eyes and exuded an odor of alcohol was sufficient to show probable cause to arrest him for driving under the influence.”) (citations omitted). Additionally, an alco-sensor test administered to Durrance tested positive. See Lenhardt v. State, 271 Ga. App. 453, 454 (1) (610 SE2d 86) (2005) (police may use the results of alco-sensor tests in determining whether probable cause exists to arrest a motorist for DUI). Given this evidence, the officer had probable cause to arrest Durrance for DUI. See Rish, supra, 295 Ga. App. at 817. Therefore, we find no error in the trial court’s denial of Durrance’s motion to suppress.

2. Durrance contends that the trial court erred in allowing the State to conduct extensive cross-examination about the argument with his wife that preceded the DUI offense and admitting into evidence a photograph showing a hole he punched into a wall during that argument. We disagree.

The record demonstrates that Durrance testified about events leading to his decision to leave his home and drive his car to the police officers located at his neighbor’s house. Durrance specifically testified that he and his wife had been drinking, and that his wife left the house after they had an argument about a televised sports event. Durrance further testified that he decided to meet the police officers because his wife had not returned home following the argument, and he wanted to know if she had been involved in a car accident. During cross-examination, Durrance testified that the argument between him and his wife was a “little bit... harsh.” The State elicited further testimony and proffered a photograph showing that the argument became so heated that Durrance punched a hole in the wall. The trial court admitted the photograph over Durrance’s relevance objection, finding that Durrance had opened the door to this line of questioning by testifying about events leading to his departure from his home. The State further questioned Durrance as to whether he hit his wife and threatened to kill her with a gun during the argument. Durrance objected to this questioning. Again, the trial court overruled Durrance’s objection on the basis that Durrance opened the door based upon his prior testimony.

Pretermitting whether the trial court’s rulings were erroneous, we find it highly unlikely that the challenged cross-examination and evidence contributed to the verdict in light of the overwhelming evidence of guilt. Notably, there was evidence that officers detected a strong odor of alcohol on Durrance; he admitted to drinking vodka and beer prior to driving; he showed impairment before and during field sobriety tests and gave a positive alco-sensor test result; and he gave breath samples showing that he had blood alcohol concentration levels of 0.092 and 0.089, above the legal limit. “It is axiomatic that harm as well as error must be established by an appellant in order to secure a reversal of his conviction.” (Citation and punctuation omitted.) Newsome v. State, 287 Ga. App. 356, 358 (2) (651 SE2d 764) (2007). Since Durrance has failed to show any harm arising from the alleged errors, we affirm his conviction.

3. Durrance also contends that the trial court imposed probation conditions that were unduly restrictive and not reasonably related to the DUI per se conviction. Specifically, Durrance challenges the condition that he complete a 24-week domestic violence intervention program, that he have no physical contact with his wife until he completed this program, and that he not drive without permission of the court during the term of probation. 6 We disagree.

“A trial court has broad discretion in sentencing to impose conditions reasonably related to the nature and circumstances of the offense and the rehabilitative goals of probation.” (Citation and punctuation omitted.) Harrell v. State, 253 Ga. App. 440, 441 (1) (559 SE2d 155) (2002). Additionally,

[i]n the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. Probated and suspended sentences, upon reasonable conditions, have traditionally been used by trial judges in Georgia as effective tools of rehabilitation and serve a useful purpose in appropriate cases as an alternative to confinement.

(Citations and punctuation omitted.) Pitts v. State, 231 Ga. App. 9 (498 SE2d 534) (1998).

Here, Durrance’s driver’s license was suspended by operation of law under OCGA § 40-5-63 (a) (1), which provides for a 12-month suspension upon the first DUI conviction. Although Durrance could apply for possible reinstatement of his driver’s license before the end of the suspension period, OCGA § 40-5-63 (a) (1), this does not change the fact that the license is suspended for at least 12 months. Accordingly, the condition that Durrance seek the court’s permission to drive was within the requisite statutory parameters.

As for the other challenged conditions, Durrance has also failed to show that the trial court abused its discretion in requiring that he complete a domestic violence intervention program and that he refrain from having physical contact with his wife until he completed this program. Notably, the evidence shows that prior to the DUI offense, Durrance was involved in a domestic disturbance with his wife in which he punched a hole in the wall of their residence. Durrance’s actions caused his wife to flee the home and call the police. During the subsequent police encounter, officers observed a pistol lying in the rear floorboard of Durrance’s vehicle. The pistol was loaded and a round, fully-chambered, ready to fire.

Decided February 22, 2013.

Crawford & Boyle, Eric C. Crawford, for appellant.

Layla H. Zon, District Attorney, Brandon K. Honsalek, Assistant District Attorney, for appellee.

Based on these circumstances, the probation conditions that Durrance complete a domestic disturbance program and refrain from contacting his wife until completion of the program were reasonably related to the nature and circumstances of the DUI offense. Additionally, given the above evidence, as well as evidence that Durrance had been previously convicted of family violence battery, the trial court was authorized to conclude that the probation conditions would help rehabilitate Durrance by addressing his issues with anger management and alcohol combined, as well as help prevent further criminal activity. See Payne v. State, 273 Ga. App. 483, 488-489 (8) (615 SE2d 564) (2005) (in aggravated battery case, affirming conditions seeking to prevent excessive and unlawful drug and alcohol use during the period of probation since condition met objective of preventing further criminal activity); cf. Tuttle v. State, 215 Ga. App. 396, 397-398 (2) (450 SE2d 863) (1994) (probation condition that precluded contact between defendant and the victim of crime bore a “reasonable relation to future criminality especially where a family relationship provided the opportunity for the past criminal conduct”). Durrance has not pointed to any express authority precluding the trial court from imposing the challenged probation conditions upon his conviction for DUI per se, and there is no indication in the record that the challenged conditions were unreasonable. See Adams v. State, 234 Ga. App. 696, 697 (3) (507 SE2d 538) (1998) (approving probation condition requiring defendant convicted of theft by taking to be screened and, if needed, treated for violent behavior and alcohol/drug dependency probation where no statutory authority precluded condition and no evidence presented that probation condition was unreasonable). Accordingly, Durrance’s challenge to the probation conditions presents no basis for reversal.

Judgment affirmed.

Ray and Branch, JJ., concur.

       The jury also found Durrance guilty of driving under the influence of alcohol to the extent that he was a less safe driver (“DUI less safe” OCGA § 40-6-391 (a) (1)). He was not convicted of the DUI less safe offense, however, because the trial court merged the offense into the DUI per se charge. See Slack v. State, 288 Ga. 659, 661 (2) (706 SE2d 447) (2011).

       Although Durrance also challenges the sufficiency of the evidence regarding the DUI less safe offense, his claim is rendered moot by the trial court’s merging of that count for sentencing. See, e.g., Ramirez v. State, 288 Ga. App. 249, 252 (3) (653 SE2d 837) (2007); Davidson v. State, 237 Ga. App. 580, 582 (3) (516 SE2d 90) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

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

       Durrance was sentenced to 12 months to serve 90 days in prison and the balance on probation.


author: Branch, Judge.

text:
    A12A1979.
    ADAMS v. CARVER.
    (738 SE2d 699)
   Branch, Judge.

On appeal from the trial court’s award of primary physical custody to Dale Carver, the father of the child at issue, the mother, Pamela Adams, argues that the trial court abused its discretion in making the award. We find no error and affirm.

“[A] judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.” OCGA § 19-9-3 (a) (1). “The duty of [a] judge in [custody cases] shall be to exercise discretion to look to and determine solely what is for the best interest of the child and what will best promote the child’s welfare and happiness and to make his or her award accordingly.” Id. at (a) (2). “We will affirm a trial court’s decision on a petition to change custody if there is any reasonable evidence in the record to support it. When reviewing a child custody decision, this Court views the evidence presented in the light most favorable to upholding the trial court’s order.” (Citation and punctuation omitted.) Lynch v. Horton, 302 Ga. App. 597 (692 SE2d 34) (2010).

Viewed in the light most favorable to the trial court’s ruling, the record shows that the mother and father met in September 2008, with a girl born to them in October 2009. In January 2012, Carver brought a legitimation petition, including a request for joint legal and primary physical custody of the child. See OCGA § 19-7-22 (f. 1) (a petition for legitimation “may also include claims for visitation, parenting time, or custody,” and the court “may order, in addition to legitimation, visitation, parenting time, or custody based on the best interests of the child standard”).

At the outset of the hearing on custody, the parties agreed that Carver’s petition should be granted as to legitimation. Evidence at the hearing showed that shortly after the mother became pregnant, the couple began fighting. In August 2009, the mother was convicted of cruelty to children in the third degree, battery, and criminal trespass after getting into a fight with another woman in front of children. Although the father often drank heavily and was violent toward the mother, she admitted to attempting to break into the father’s house and to striking back at the father “in self-defense” while holding their child in her arms. The mother also violated her probation on the cruelty-to-children charge when she and the father had an altercation in November 2011, after which she pled guilty to a charge of simple battery. After several attempts at reconciliation, the mother moved to Moultrie, more than 400 miles from the father, because she feared for her safety. The father testified that he had often seen the mother bang her head against the wall and that the child was beginning to exhibit the same behavior. He also testified that the mother’s bruises had been caused by her own self-destructiveness, including slamming herself against a door the father was attempting to exit through.

Decided February 22, 2013.

Jerry C. Carter, Jr., for appellant.

Dale Carver, pro se.

The trial court held that the mother and father “shall have joint legal custody” of the child, “with [the father] named the primary physical custodian as the Court finds that he has the most stability at this time.” The court ordered that the mother’s visitations should be supervised by other family members until she completed a family violence intervention program and obtained a psychological evaluation certifying that she was capable of unsupervised visitation. The court also ordered that “[t]here shall be no alcohol consumption by [the father] while the minor child is with him” and that the mother “may request that [the father] take an alcohol test at any time that the minor child is to be in his custody,” with the mother bearing costs if the father passed such a test and the father bearing costs if he failed.

On appeal, the mother argues only that the trial court should have weighed the evidence of the father’s alcohol abuse and propensity for violence more heavily against him. But we are in no position to substitute our judgment for the trial court’s on these matters of fact. On the contrary, and as we have recently repeated, “the Solomonic task of making these decisions [as to child custody] lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” (Citation and punctuation omitted.) Smith v. Curtis, 316 Ga. App. 890, 892 (730 SE2d 604) (2012). This record, including the mother’s conviction for child cruelty arising from her fighting in front of children, supports the trial court’s discretionary determination that awarding primary physical custody to the father was in the child’s best interest. OCGA § 19-9-3 (a) (2); Smith, supra at 893-894 (affirming trial court’s modification of custody rights as supported by the record); Lynch, supra at 601-602 (4).

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


text:
    A12A2007.
    HERNANDEZ v. THE STATE.
    (738 SE2d 701)
   MILLER, Presiding Judge.

ADeKalb County jury convicted Jose Hernandez of two counts of aggravated child molestation (OCGA § 16-6-4 (c)) and three counts of child molestation (OCGA § 16-6-4 (a) (1)). Hernandez appeals, contending that the trial court erred in denying his motion for a directed verdict of acquittal since (i) there was a fatal variance between the aggravated child molestation allegations in the indictment and the evidence presented at trial and (ii) the State failed to prove venue beyond a reasonable doubt. We discern no error and affirm.

Viewed in the light most favorable to the jury’s verdict, the trial evidence shows that Hernandez was the live-in boyfriend of the victim’s mother, and the victim referred to Hernandez as her stepdad. The victim testified that when she was seven years old, Hernandez began molesting her almost daily while her mother was away at work. In describing the molestation incidents, the victim described that Hernandez removed her clothes and touched her “everywhere,” including her chest and her “lower private parts” with his hands and his mouth. She stated that when she tried to resist, Hernandez hit her and screamed at her. The molestation continued over the course of a year until the victim moved to Mexico.

The victim returned from Mexico six months later. The victim testified that when she returned to the residence, Hernandez began molesting her in the same manner as before. She again described that while her clothes were off, Hernandez touched her “everywhere,” including the “private area[s]” of her chest and lower areas with his mouth and hands. The molestation continued until the victim was fourteen or fifteen years old.

Eventually, the victim disclosed the molestation to her best friend at school. The victim stated that she was afraid to tell her mother about the molestation at that point because Hernandez had threatened to blame her and falsely claim that she had initiated the incidents. The victim was also afraid that her mother would not believe her and would take Hernandez’s side.

In 2009, the victim’s mother separated from Hernandez, and the victim’s family moved out of the residence. Thereafter, the victim disclosed the molestation to her mother, and the matter was reported to the police.

Following an investigation, Hernandez was charged, tried, and convicted of the child molestation and aggravated child molestation sex offenses.

1. Hernandez contends that the trial court erred in denying his motion for a directed verdict of acquittal as to the aggravated child molestation offenses since there was a fatal variance between the allegations in the indictment and the evidence presented at trial. His contention is without merit.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [Hernandez] no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.

(Citation, punctuation and emphasis omitted.) Pippins v. State, 263 Ga. App. 453, 453-454 (1) (588 SE2d 278) (2003).

“A person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” OCGA § 16-6-4 (a) (1). “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which ... involves an act of sodomy.” OCGA § 16-6-4 (c). Sodomy is defined, in pertinent part, as any sexual act involving the sex organs of one person and the mouth of another. See OCGA § 16-6-2 (a) (1).

The indictment pertinently alleged that Hernandez had committed the aggravated child molestation offenses based upon acts “involving the mouth of [Hernandez] and the sexual organs of [the victim]... by placing the mouth of [Hernandez] on the vagina of [the victim], said act involving an act of sodomy[.]” In her trial testimony describing the molestation incidents, the victim stated that while her clothes were off, Hernandez had touched her lower “private area” with his mouth and had placed his mouth on her “lower private area.” Although the victim did not use the specific term “vagina” during her testimony, the jury could reasonably infer that she was referring to her vagina when she stated that the contact was with her “lower private area.” See Gioia v. State, 307 Ga. App. 319, 320 (1) (704 SE2d 481) (2010) (affirming the denial of defendant’s motion for a directed verdict of acquittal as to an aggravated child molestation charge since the testimony showed that the defendant had kissed the victim’s “private parts” with her pants pulled down); Collins v. State, 269 Ga. App. 381, 382 (1) (b) (604 SE2d 240) (2004) (testimony that defendant touched the victim’s “private part” and put his penis “in the girl” was sufficient to prove contact with the victim’s vagina); Richie v. State, 183 Ga. App. 248, 250 (1) (358 SE2d 648) (1987) (ruling that the victim’s reluctance to actually name the sex organ did not preclude the jury from reasonably inferring that the “something” defendant assaulted her with was his sexual organ).

Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused. It is the underlying reasons for the rule which must be served: 1) the allegations must definitely inform the accused as to the charges against him so as to enable him to present his defense and not to be taken by surprise, and 2) the allegations must be adequate to protect the accused against another prosecution for the same offense. Only if the allegations fail to meet these tests is the variance “fatal.” ... If the indictment correctly states whose sex organ and whose mouth are involved in the sodomy, there will generally be no fatal variance.

(Citation, punctuation and footnotes omitted.) Turner v. State, 231 Ga. App. 747, 747-748 (1) (500 SE2d 628) (1998). Here, the aggravated child molestation allegations of the indictment sufficiently apprised Hernandez of the charges against him, did not mislead him as to the criminal acts with which he was charged, and adequately set forth the allegations in a manner to protect him against subsequent prosecutions for the offense charged. See, e.g., id. Moreover, the trial evidence was consistent with the allegations of the indictment and was sufficient to sustain his convictions. See OCGA § 16-6-4 (c); Maloney v. State, 317 Ga. App. 460, 461 (731 SE2d 133) (2012); Gioia, supra, 307 Ga. App. at 320 (1).

Decided February 22, 2013

Benjamin A. Davis, Jr., for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

2. Hernandez also argues that the State failed to prove beyond a reasonable doubt that the sex offenses were committed in DeKalb County. We disagree.

Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

(Citation and footnote omitted.) Pippins, supra, 263 Ga. App. at 455 (2).

The victim’s testimony reflected that the molestation incidents occurred at the residence that her family shared with Hernandez. The victim’s mother testified that their family lived with Hernandez in two residences, and that both of the residences were located in DeKalb County. This evidence was sufficient to prove venue in DeKalb County beyond a reasonable doubt. See Thompson v. State, 277 Ga. 102, 104 (3) (586 SE2d 231) (2003) (ruling that venue had been sufficiently established by evidence that the incidents occurred at the residence and the residence was located in Houston County); Flanders v. State, 285 Ga. App. 805, 806-807 (2) (648 SE2d 97) (2007) (ruling that the evidence was sufficient to prove venue when the victim testified that the molestation occurred at her aunt’s residence, and the aunt testified that her residence was in the county where the defendant was indicted). Accordingly, the trial court’s denial of Hernandez’s motion for a directed verdict was proper.

Judgment affirmed.

Ray and Branch, JJ., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A12A2267.
    CLARK v. THE STATE.
    (738 SE2d 704)
   Branch, Judge.

Michael Clark, Elizabeth Durante, and Sonya Ferrell were tried by a Richmond County jury and convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1) (A)) and unlawful possession of MDMA (OCGA § 16-13-30 (a)). Clark and Durante were also convicted of certain misdemeanors. In an unpublished opinion, this Court affirmed Durante’s convictions, and in a published opinion, we affirmed Ferrell’s convictions. Ferrell v. State, 312 Ga. App. 122 (717 SE2d 705) (2011). Clark now appeals, contending only that the evidence was insufficient to sustain his convictions of trafficking in cocaine and possession of MDMA.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of the witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Id. at 122-123.

As set forth in our opinion in Ferrell, when viewed in the light most favorable to the verdict, the evidence in this case shows:

Deputy Billy Jones initiated a traffic stop because the driver and passenger of a car were not wearing seatbelts. The vehicle delayed pulling over but finally stopped. Clark was driving, Durante was in the front passenger seat, and Ferrell was in the back seat. Upon speaking with the driver, the deputy smelled a strong odor of marijuana. After questioning, Clark admitted that his driver’s license was suspended, and Durante admitted that she had some marijuana in her purse, which was in the center console of the car. The deputy found a plastic bag with six grams of marijuana in Durante’s purse, as well as a cell phone. The phone showed a picture of Clark and Durante with the phrase “Mike and Liz” on the top of the photo. [] The phone contained text messages referencing drugs and drug sales.
A search of the car revealed a Crown Royal bag on the front [passenger] floorboard at the edge of the seat. Inside this bag were empty baggies, cocaine, and a digital scale commonly used for weighing drugs. The cocaine was packaged in one large bag, weighing 30.7 grams, and 17 individual baggies, weighing 6.4 grams total. The large bag of cocaine was 80.9 percent pure, and the smaller bags were about 60.7 percent pure. Also inside the Crown Royal bag was a pharmacy pill bottle labeled with Ferrell’s anti-depressant prescription. The bottle contained two baggies, one holding five pills and the other holding one pill. GBI crime lab tests subsequently confirmed that the pills were MDMA.

Ferrell, 312 Ga. App. at 123. Ferrell gave additional evidence suggesting a link between the Crown Royal bag and Clark. She testified that a couple of days before the incident, she needed a refill of some prescription medication and that the pill bottle was on top of the entertainment center in her living room. Clark was at her home, and she asked him if he could pick up the prescription for her and bring it back. She identified the pill bottle recovered from the Crown Royal bag as hers.

As set out in our unpublished opinion in Durante v. State, 315 Ga. App. XXI (March 20,2012), the case against the defendants raised the issue of joint constructive possession of the items found in the Crown Royal bag:

At trial, the State set out to prove that Durante, Ferrell, and Clark had joint and constructive possession of the cocaine and MDMA, and that is a legally cognizable theory of possession and apparently the one upon which the jury convicted Durante and her co-defendants. See Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009) (“joint constructive possession with another will sustain a conviction for possession of contraband”) (citation and punctuation omitted); Warren v. State, 254 Ga. App. 52, 54-55 (1) (561 SE2d 190) (2002) (“[b]y showing circumstantially that each of the defendants had equal access to the drugs, the state was able to support its theory that all of the defendants were parties to the crime and thus guilty of joint constructive possession of the drugs”) (citation omitted).

Given that the evidence of joint and constructive possession was circumstantial, the State was required to present sufficient evidence to exclude all reasonable hypotheses save that of the guilt of the accused:

[T]o warrant a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else. And questions of reasonableness are generally decided by the jury.

(Citation and punctuation omitted.) Prather v. State, 293 Ga. App. 312, 313 (1) (667 SE2d 113) (2008). See also former OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”).

Clark argues that everything found in the car, as well as the car itself, was linked to the other defendants, especially Durante, who was riding in the passenger seat and to whom the car was registered. Clark states that there is no testimony regarding the relationship between him and Durante or evidence about how long he was in the car. Thus Clark’s sole argument is that the evidence showed only that he was “merely present” and that “[m] ere presence at the scene of the commission of a crime is insufficient to convict one as a party thereto.” (Citation omitted.) Watkins v. State, 306 Ga. App. 769, 771 (3) (702 SE2d 904) (2010).

But there was evidence of a relationship between Clark and the co-defendants. Clark got his sister to babysit for Ferrell so that the three co-defendants could go out that evening to socialize; Clark drove Durante’s car with Durante in the passenger seat; and the State introduced Durante’s cell phone into evidence, which had the words “Mike and Liz” on the front. Ferrell, 312 Ga. App. at 123. Ferrell’s request that Clark pick up her prescription medication constituted some evidence linking Clark with Ferrell’s prescription bottle, which was found inside the Crown Royal bag. And the evidence showed that the Crown Royal bag was within Clark’s reach and not hidden. An officer testified to finding the bag and the bag’s location: “As I leaned in the vehicle, there was a blue Crown Royal bag in the front floorboard not — not up under the seat, right at the edge of the seat.” A photograph showing the location of the bag relative to the seat was introduced into evidence; the photograph shows several items lying on the floor in plain view with a part of the Crown Royal bag also visible. The officer also demonstrated the position of the bag to the jury, and he testified that it could be seen sticking out from under the seat and that it was in a place within the reach of the driver. Finally, none of the defendants claimed the Crown Royal bag as their own.

Decided February 22, 2013.

Gabriel T. Cliett, for appellant.

R. Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

“A defendant’s power to exercise control over the drugs may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances.” (Citation omitted.) Sabb v. State, 317 Ga. App. 537, 540 (731 SE2d 399) (2012). And because Clark and his co-defendants were jointly charged with trafficking in cocaine and possession of the MDMA, the State was not required to show that Clark was in sole constructive possession of the drugs. Mercado v. State, 317 Ga. App. 403, 405 (731 SE2d 85) (2012). Finally, because Clark was driving the vehicle and because all persons allegedly having equal access to the drugs were alleged to have been in joint constructive possession, the State was entitled to a presumption that Clark was in constructive possession of the drugs. Cabrera v. State, 303 Ga. App. 646, 651-652 (1) (694 SE2d 720) (2010) (State generally entitled to evidentiary presumption that automobile owner or driver is in constructive possession of contraband).

As long as there is “slight evidence of access, power, and intention to exercise control or dominion over the [contraband], 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). Based on the rebuttable presumption of constructive possession, the visibility of and location of the Crown Royal bag, and the other evidence mentioned above, we conclude that the State presented sufficient evidence to support Clark’s conviction of trafficking in cocaine and unlawful possession of MDMA.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.

       MDMA, or 3, 4-Methylenedioxymethamphetamine, is a Schedule I controlled substance more commonly known as “ecstasy.” See OCGA § 16-13-25 (3) (Z).

       Clark was convicted of possession of an ounce or less of marijuana, OCGA § 16-13-2 (b), and failure to wear a safety belt, OCGA § 40-8-76.1, but he does not challenge these convictions on appeal.

       According to a police investigator, “[w]hen you turn the phone on, a picture of Mr. Clark comes on . . . and then when you cut it off, a picture of Ms. Durante comes on.”


author: McMillian, Judge.

text:
    A12A1681.
    LeCROY et al. v. BRAGG.
    (739 SE2d 1)
   McMillian, Judge.

Appellee Glenda Bragg brought a premises liability action against Stephens County and county employees Jackie LeCroy and Edwin Miller seeking to recover damages for injuries she received when she stepped into a hole in the parking lot of a county-owned recycling center. The trial court, with Bragg’s consent, granted the County’s motion for judgment on the pleadings, and LeCroy and Miller (hereinafter defendants) moved for summary judgment based on official immunity and Bragg’s equal knowledge of the hazard. The trial court denied their motion but certified its decision for immediate review, and defendants filed an application for interlocutory review in this Court. We granted defendants’ application, and they timely filed the present appeal.

The following facts, taken largely from Bragg’s deposition and construed in her favor as the nonmovant on summary judgment, are pertinent here: On February 17, 2009, Bragg took various items of garbage to the recycling center on White Pines Road in Stephens County for disposal. Bragg, who was driving a Ford Explorer hatchback, noticed “several little holes and [a] big one” in the pavement as she drove into the lot, which she intentionally avoided and “tried to miss completely.” Bragg parked and exited her vehicle, and then walked around to the back where she opened the hatchback and removed some of her nonbagged garbage, such as plastic laundry containers. She made the trip to and from the recycling bin without incident, and went to the back of her car and unloaded more trash. She took a step back with her left foot without any problem and began to step back with her right foot, but when she took the weight off that foot her left foot went into one of the larger holes and she fell, sustaining injuries.

According to Bragg, she did not notice the hole when she got out of her car and thought “she had plenty of room to get out of [her] door and go [to the] back [of her car],” without ever having to step over the hole. However, she also testified that she knew the hole was there, that she knew she had gone around it, and that she did not think the hole was where she was stepping. She also testified it was “fair” to say she was not watching where she was placing her foot as she stepped back, and that the hole was not obscured or difficult to see.

With these facts as a backdrop, we now turn to defendants’ arguments on appeal.

1. Defendants first argue that they were entitled to summary judgment because the undisputed facts show that Bragg had equal knowledge of the hazard. We agree.

The standard to be applied in our review of cases involving the grant or denial of a motion for summary judgment is well known and oft repeated:

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party.

(Citation and punctuation omitted.) McLemore v. Genuine Parts Co., 313 Ga. App. 641 (722 SE2d 366) (2012).

The duty of the owner or occupier of land to an invitee such as Bragg emanates from OCGA § 51-3-1, which provides:

Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

In a “trip and fall” case, a plaintiff must show that

(1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner’s control. However, the plaintiff’s evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of reasonable care, should have known existed. With respect to the second prong, we determine whether the record shows plainly, palpably, and without dispute that plaintiff had knowledge of the hazard equal or superior to that of defendants or would have had equal or superior knowledge had the plaintiff exercised ordinary care for personal safety.

(Punctuation and footnote omitted.) McLemore, 313 Ga. App. at 643.

Thus “[t]he duty imposed under OCGA § 51-3-1 does not make a premises owner an insurer of an invitee’s safety, but requires the exercise of ordinary care to protect the invitee from unreasonable risks of harm of which the premises owner has superior knowledge.”

(Citation and punctuation omitted.) Campbell v. Savannah Motors, 311 Ga. App. 460, 461 (1) (716 SE2d 534) (2011).

We first determine the nature of the hazard because that characterization may impact our analysis. In this case, the hazard — the pothole — was readily discernible and of a type that we have previously deemed to be a “static defect.” E.g., Muskett v. Sketchley Cleaners, 297 Ga. App. 561, 564 (3) (677 SE2d 731) (2009) (“Small cracks, holes, and uneven spots in pavement are considered static defects.”).

A static condition is one that does not change and is dangerous only if someone fails to see it and walks into it. If nothing obstructs the invitee’s ability to see the static condition, the proprietor may safely assume that the invitee will see it and will realize-any associated risks. Consequently, as applied to the grant of summary judgment in this case, the issue is whether the factual evidence is plain, palpable, and undisputed that nothing obstructed [Bragg’s] ability to see the pothole [ ] and thus the defect was or should have been visible to her.

(Punctuation and footnote omitted.) Thomas v. Executive Committee of the Baptist Convention of the State of Ga., 262 Ga. App. 315, 319 (c) (585 SE2d 217) (2003). E.g., McLemore, 313 Ga. App. at 643; Ga. Dept. of Transp. v. Strickland, 279 Ga. App. 753, 755 (632 SE2d 416) (2006); Williams v. J. J. Butler, Inc., 253 Ga. App. 116, 117-118 (558 SE2d 449) (2001) (physical precedent only).

Concerning Bragg’s knowledge, her own deposition testimony established that the potholes were open and obvious and that nothing obstructed her ability to see the hole; indeed, the undisputed evidence shows that Bragg did see the potholes when she drove into the parking lot. Thus, the issue here is not constructive knowledge of something Bragg should have seen but actual knowledge of something she did see. Bragg testified that she was aware that she had to walk around the hole when she went from her car to the bin and back. Further, although she said she did not realize that the hole was behind her until she stepped back and fell, she also said that she was not looking where she placed her foot and that the hole would not have been difficult to see had she looked where she was stepping. In sum, the evidence here was “plain, palpable, and undisputed” that Bragg knew there was a pothole in the area where she parked and that she could have seen she was placing her foot in the pothole if she had looked.

Moreover, this is not a case where the plaintiff was prevented from seeing the hole had she attempted to look. Although Bragg had gone back to her vehicle to get more recyclables to take to the bin, she was not walking forward with an obstructed view when she fell, but rather was walking backward without looking where she was going. Thus, “[t]he proof offered clearly puts this case within the line of cases involving the plain view doctrine and effectively eliminates any distraction theory.” (Punctuation omitted.) McLemore, 313 Ga. App. at 645. Cf. Zack’s Properties v. Gafford, 241 Ga. App. 43, 44 (1) (526 SE2d 80) (1999) (jury question when plaintiff fell pushing full grocery cart through busy parking lot).

While this Court is to remain mindful “that the ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication . . . ,” [American Multi-Cinema v. Brown, 285 Ga. 442, 445 (679 SE2d 25) (2009),] this is one of those cases in which the evidence is plain and palpable that the defendants are not liable. Robinson v. Kroger Co., 268 Ga. 735, 748 (493 SE2d 403) (1997).

Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 395 (506 SE2d 910) (1998).

Because Bragg’s knowledge of the hazard that caused her fall and resulting injuries was at least equal to that of the landowner, she may not recover. It follows that the defendants should have been granted summary judgment on this basis. McLemore, 313 Ga. App. at 645; cf. Landrum v. Enmark Stations, 310 Ga. App. 161, 164-165 (712 SE2d 585) (2011) (jury issue because evidence did not demand finding that plaintiff had constructive knowledge of uneven or cracked pavement in particular area of parking lot where she had not been before); Thomas, 262 Ga. App. at 319 (c) (lighting was dim and plaintiff did not see small divot in pavement before she fell in unfamiliar area); Jackson, 245 Ga. App. at 374 (2) (jury issue where plaintiff had traversed different area of rough, uneven parking lot).

2. Because of our holding in Division 1, it is unnecessary for us to decide whether defendants were entitled to the protection of official immunity.

Judgment reversed.

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

Decided February 25, 2013.

Begnaud & Marshall, Andrew H. Marshall, for appellants.

Howell & Johnson, Evan H. Howell, Michael W. Johnson, for appellee.

       We note that there is no contention here that the County was unaware of the potholes. Jackson v. Waffle House, 245 Ga. App. 371, 373 (1) (537 SE2d 188) (2000) (“owner/oecupier is on constructive notice of what a reasonable inspection would reveal”).