author: MCMlLLIAN, Judge.

text:
    A14A1018.
    A14A1019.
    ALSTON v. THE STATE. PERKINS v. THE STATE.
    (763 SE2d 504)
   MCMlLLIAN, Judge.

Kelton Alston and Chance Perkins were tried together before a jury and each was convicted of aggravated assault, armed robbery, theft by receiving, cruelty to children, criminal street gang activity and possession of a firearm during the commission of a crime. They filed separate motions for new trial, which the trial court denied. Alston and Perkins then filed separate, timely notices of appeal, which were docketed in this Court as Case Nos. A14A1018 and A14A1019, respectively. We consolidated their cases for review and now affirm.

Construed to support the verdict, the evidence shows that Alston, Perkins and Quadell Leonard traveled from New Jersey to Georgia on March 31, 2009, for a visit. They initially stayed at an apartment on Six Flags Drive with Darien White and his girlfriend, Teranisha Posey, who Perkins claimed was his relative. White testified that appellants and Leonard told him they were members of the Bloods street gang, that they wore red clothing and bandanas as proof of their membership, and that they talked of committing robberies and other crimes to make money to go back to New Jersey.

White testified that he left his apartment for a while on April 4, 2009, and that when he returned home he discovered that his belongings had been rearranged and that his handgun had been taken. White reported the gun stolen at that time. White encountered the defendants later that day at a nearby apartment complex and asked for his “property” back. The defendants started to run away, but one of them turned around and fired White’s gun in his direction, striking his vehicle. White called police again to report the shooting incident. White testified he saw Perkins the next day at a gas station, and Perkins pulled up his shirt to show White that he still had his handgun.

Brittany Dawn Baker testified that on April 5, 2009, she was waiting at the bus stop outside Six Flags amusement park (“Six Flags”) with her friend Iya Akinsaye when three men wearing “red big jewelry going around their necks” walked up and began talking to them. Baker testified that the men said they wore the beads to “represent” the Bloods and that they all had numerous tattoos on their bodies.

Baker testified that a “nice” car turned in the lane near them, and one of the men ran up to the car, but it pulled away. He rejoined the group and remarked, “I could have had her, I could have had her,” and touched what appeared to be a gun under his shirt. Baker said the two other men were behind him but also walked toward the car, and when he touched his waist, they also repeated, “yeah, yeah, we could have had her, we could have had her.”

Baker said that a few minutes later, the man with the gun looked up toward the bridge that passes over Six Flags Drive and then tapped one of the other men on the shoulder, seeming to indicate “come on this way,” and the men left together. Baker testified that about five or ten minutes after the men left, a man and a young boy walked up to them from the direction of the bridge the men had walked toward and said that they had been robbed. She said the boy was crying and the man appeared distressed and scared and asked to use a cell phone so he could call the police.

Paul Santos Rivera (“Santos”) testified that he and his five-year-old son went to Six Flags on April 5,2009. He and his son left the park around 5:00 p.m., and were walking to a nearby gas station to meet his wife who was picking them up there. However, before they reached the gas station, three men came up to him, and one of them pointed a gun at his head and demanded that he drop his valuables. Santos put his Play Station Portable, cell phone, and money on the ground, and the perpetrators picked up the items and then walked away laughing. Santos further testified that he saw the gunman, and possibly the other two perpetrators, talking to a girl at a bus stop outside Six Flags when he and his son passed by on the way to the gas station, and that shortly after they passed the bus stop, he heard footsteps behind him and feared something bad was about to happen.

Santos said that he walked back to the bus stop to borrow a cell phone so he could call police, and he borrowed a phone from one of the women he had seen talking to the perpetrators to call 911. A short time later, defendants were apprehended in a nearby neighborhood based on the information police received from several 911 calls.

Leonard entered a guilty plea prior to trial, and was called by the State as a witness. Leonard testified that he and appellants were members of different divisions of the Bloods gang in New Jersey and that Alston’s nickname was “Grimy Red,” Perkins’s nickname was “Little Hellbound,” and his nickname was “Big Hellhound.” He also admitted he had tattoos that showed his gang affiliation, that he wore red and black beads, and that a red bandana he wore signified that he was a Bloods gang member.

Although Leonard acknowledged that he initially told police that appellants participated in the theft of White’s gun and the armed robbery, Leonard testified at trial that he acted alone in these crimes and that he had lied in his earlier statements. He also admitted that he wrote a letter to Alston while they were in prison in which he admitted he had violated gang rules by “snitching” on appellants and that he also wrote a letter in which he told Alston he was going to tell his lawyer that he had lied when he had implicated appellants in the crimes.

Additional evidence will be set forth as necessary to address appellants’ specific claims of error.

Case No. A14A1018

1. Turning first to Alston’s enumerations of error, Alston argues that the State failed to prove the necessary nexus between the alleged criminal street gang violation and the predicate crimes of aggravated assault and armed robbery as alleged in the indictment. See Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009). It is true that our Supreme Court has held that a conviction under OCGA § 16-15-4 (a) requires that there “be some nexus between the [predicate] act and an intent to further street gang activity.” Id. However, we disagree that the State failed to present sufficient evidence of the necessary nexus in this case.

First, we note that Alston does not appear to challenge the sufficiency of the evidence to support his convictions for the predicate offenses underlying the gang charges. Further, the evidence presented at trial overwhelmingly established that defendants were associated with various divisions of the Bloods criminal street gang. Alston argues, however, that no evidence was presented concerning his New Jersey gang criminal activity and no evidence was presented that the crimes that were committed in Georgia were related to or in furtherance of their New Jersey gang activity. However, the State presented expert testimony that the Bloods is a national gang and that the regional or local subsets of the gang use many of the same identifying markers, such as tattoos or renderings of five-sided objects and the colors red and black. The record is replete with evidence that defendants continued to wear these identifying colors once they arrived in Georgia and that they in fact were wearing colors signifying their Bloods gang affiliation at the time they committed the armed robbery.

Additionally, White testified that defendants talked about their gang membership from the time they arrived in Georgia, and they talked about “what they wanted to do while they [were here], like robberies and trying to make some money to get back home. Pretty much anything, I guess, what they do up in New [Jersey] where they are from, I guess.” Further, Baker testified that the defendants talked about their gang affiliation just minutes prior to robbing Santos, that they were wearing red and black beads, and that they made statements indicating they wore their gang colors to “represent.”

The State also presented testimony from an expert on gangs, who said that it would be a violation of the Bloods gang “bylaws” to wear a rival gang’s colors during the commission of a crime and that the gang’s reputation is furthered by committing highly visible crimes in a manner which allows the witnesses and the victims to discern that a particular gang committed the crime. Further, communications recovered from defendants’ jail cells show that they continued to communicate about the crimes after they were apprehended and incarcerated and that Leonard wrote a letter to Alston acknowledging he had committed a violation of gang rules by implicating his fellow gang members in the crimes. Additionally, evidence was also presented that shortly after he was arrested he told police that he “can’t give names because of these” and pointed to the gang tattoos on his hands and wrist. This and other evidence presented at trial was sufficient to establish that the crimes here were related to and in furtherance of defendants’ Bloods gang affiliation. Jones v. State, 318 Ga. App. 26, 30 (1) (b) (733 SE2d 72) (2012); In the Interest of C. P., 296 Ga. App. 572, 576 (675 SE2d 287) (2009).

2. Alston also contends that the trial court erred by denying his motion to sever.

A trial court’s decision to deny a motion to sever will be affirmed absent an abuse of discretion. The defendant moving for severance has the burden of making a clear showing of prejudice and of a denial of due process in the absence of severance. Indeed, in satisfying this burden, a defendant must do more than simply assert that he would have a better chance of acquittal if he were tried separately.

(Citations and punctuation omitted.) Jones v. State, 277 Ga. App. 185, 186 (626 SE2d 142) (2006). Further, the trial court applies the following factors in deciding a severance motion:

(1) whether the number of defendants will create confusion as to the evidence and the law applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions, or whether the strength of the evidence against one defendant will engulf the other with a “spillover” effect, and (3) whether the defendants’ defenses are antagonistic to each other or to each other’s rights.

(Citations omitted.) Id. at 186-187. See also Herbert v. State, 288 Ga. 843, 845 (2) (708 SE2d 260) (2011).

Alston contends that the trial court should have severed his trial based on the second factor, arguing that he was prejudiced by being tried with Perkins because of his visible gang-related tattoos. In support of this contention he points to the fact that a large number of potential jurors had to be excused for cause “just based on the viewing of the co-defendant” Perkins. But the transcript of the voir dire proceedings belies Alston’s assertion that this was the reason a large number of jurors were excused. The transcript shows that 11 potential jurors were excused for cause, but that the majority of jurors who were excused said they had formed an opinion or were biased because the appellants had been charged with numerous crimes, or other reasons unrelated to Perkins’ tattoos. And of the four jurors who did indicate that Perkins’ tattoos, or even more generally appellants’ appearance, would affect their impartiality, one juror stated that her bias against Perkins would not “spillover” to Alston, and another juror indicated that his impartiality might not spillover to Alston.

Moreover, and importantly, these jurors were properly questioned and excused outside the presence of the other potential jurors, thus removing any potential influence their biased opinion might have had on the jury’s deliberations. Further, the trial court specifically charged the jury to

deliberate separately as to each defendant and return a separate verdict as to each defendant.... And I charge you that though you may consider all the evidence as a whole, conviction of one defendant does not necessarily require conviction of the other. You, the jury, must determine the guilt or the innocence of each defendant separately.

Lastly, testimony and photographs were admitted that showed that all three defendants had gang tattoos, and such evidence was admissible and relevant to establish defendants’ association with a criminal street gang. See Jones, 318 Ga. App. at 30 (1) (b) (OCGA § 16-15-3 (2) clearly contemplates that existence and membership in a criminal street gang may be established by evidence of tattoos, among other things). Thus, the chance of spillover based solely on the jury viewing Perkins’ facial gang tattoos was minimal. Accordingly, the trial court did not abuse its broad discretion in denying Alston’s motion to sever. E.g., Moon v. State, 288 Ga. 508, 509 (2) (705 SE2d 649) (2011); Herbert, 288 Ga. at 845 (2); Jones, 277 Ga. App. at 187-188.

3. In his final enumeration of error, Alston contends that the trial court erred by allowing the State to play the recording of the 911 calls received after the armed robbery because two of those witnesses did not testify at trial. Also, Alston asserts that the res gestae exception to the hearsay rule does not apply because the information the caller provided about the crime was the product of afterthought or reflection, the caller did not witness the crime, and part of the information the caller provided came from a person talking to her in the background during the call.

Statements that are made during a 911 call, including statements identifying the perpetrator of a crime, while the incident is on-going and the perpetrator is still at large with the purpose of enabling the police to meet an on-going emergency are not testimonial in nature. Glover v. State, 285 Ga. 461, 462 (2) (678 SE2d 476) (2009); Thomas v. State, 284 Ga. 540, 542 (2) (668 SE2d 711) (2008); Landaverde v. State, 305 Ga. App. 488, 491 (2) (699 SE2d 816) (2010). “Once a determination is made that a statement is nontestimonial in nature, normal rules regarding the admission of hearsay apply. Thus, the statements were admissible if they qualified under one of Georgia’s hearsay exceptions.” (Citations and punctuation omitted.) Thomas, 284 Ga. at 543-544 (2). Here, the trial court admitted the statements under the res gestae exception, which is frequently used in this state to admit recordings of 911 calls that are made during the commission of a crime. Thomas, 284 Ga. at 544 (2).

Whether the res gestae exception, formerly codified at OCGA § 24-3-3, applies depends on factors such as

(i) the timing of the statement (ii) whether the declarant was able to deliberate about the statement and (iii) whether the declarant was influenced by others prior to making the statement. Additionally, there must be some evidence to show that the declarant had personal knowledge regarding the facts delivered in the statement and was not merely relaying information he had obtained from another person.

(Citations and punctuation omitted.) Thomas, 284 Ga. at 544 (2).

Four 911 calls about the armed robbery were received within minutes of the crime. The first and third calls were from Amber McClendon. In the first call, McClendon indicated that she had seen a “man getting robbed in front of his kid” and that “he had a gun pointed in his face.” She said that there were three male perpetrators, that the victim was Hispanic, and that the perpetrators were black. She also gave a description of the clothes two of the perpetrators were wearing. McClendon indicated that she was reporting the crime because the victim did not have a phone and was upset. McClendon called back about five minutes later, and reported that she had seen the perpetrators in a nearby subdivision, where they were ultimately apprehended.

The second call was from Iya Akinsaye, who was one of the women defendants had been talking to at the bus station. Akinsaye also reported that someone had just been robbed, and gave a description of the men, including the fact that they were from New Jersey and had on red and black beads. The 911 operator asked her how many guns were involved and she asked a man in the background the question, whose audible response Akinsaye relayed to the operator. Akinsaye also indicated to the 911 operator that the victim had asked her to call.

The fourth call was from Santos, who said he had just been robbed. He also indicated to the 911 operator that someone had already called on his behalf to report the crime because he did not have a phone. At that point, the police arrived, and Santos did not give the operator any additional information.

We find no error in the admission of the recording of the 911 calls under these facts. The calls were obviously made immediately after the robbery, while the robbers were still at large and for the purpose of securing police assistance for the victims and helping the police catch the perpetrators. McClendon’s statements indicate she witnessed the crime, and even if Akinsaye did not witness the crime, she saw the perpetrators leave the bus stop to follow Santos and his son. Further, it was clear, as the trial court noted, that the person speaking to her in the background during the 911 call was Santos. Thus, the information she gave the 911 operator was based either on her own observations of the defendants which occurred just immediately prior to when they robbed Santos or the information Santos, who testified at trial, provided her during the call. “A trial court’s determination that evidence is sufficiently informative and reliable as to warrant being considered as part of the res gestae will not be disturbed on appeal unless the ruling is clearly erroneous.” Thomas, 284 Ga. at 544 (2). Based on the foregoing, we conclude that the trial court properly determined that the recording of the 911 calls was admissible under the res gestae exception. This enumeration thus affords no basis for reversal. E.g., Glover, 285 Ga. at 462 (2); Thomas, 284 Ga. at 544 (2); Landaverde, 305 Ga. App. at 491 (2).

Case No. A14A1019

4. Perkins also argues that the State failed to prove the necessary nexus to establish the criminal street gang violation and that the trial court erred by allowing the recording of the 911 calls to be played for the jury. However, for the reasons stated in Divisions 1 and 3 above, these contentions are without merit.

5. Perkins also contends that his trial counsel was ineffective because he failed to have Perkins’ tattoos covered for trial and because he failed to move for a mistrial after the jury was clearly prejudiced by seeing his tattoos.

The standard for judging an ineffectiveness claim is well known and need not be belabored here. To prevail on his ineffectiveness claim, Perkins “must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.” Myers v. State, 275 Ga. 709, 713 (4) (572 SE2d 606) (2002). “This burden, although not impossible to carry, is a heavy one.” (Citation and punctuation omitted.) Hicks v. State, 295 Ga. 268, 275 (3) (759 SE2d 509) (2014).

Appellants’ trial counsel testified at the motion for new trial hearing that they discussed the issue of covering Perkins’ tattoos and that they agreed that it might look to the jurors like they were hiding something or being “sneaky.” Further, they said they believed that covering the tattoos would be of little benefit since the photographs of Perkins’ facial and other tattoos would most probably be admitted at trial. Thus, Perkins’ counsel testified that he made a strategic decision not to attempt to cover the tattoos.

Judicial scrutiny of counsel’s performance must be highly deferential. For this reason, the law recognizes a strong presumption that counsel performed reasonably, and the defendant bears the burden of overcoming this presumption. In particular, decisions regarding trial tactics and strategy may form the basis for an ineffectiveness claim only if they were so patently unreasonable that no competent attorney would have followed such a course.

(Citations and punctuation omitted.) Hicks, 295 Ga. at 276 (3) (b). In light of all the attendant circumstances here, we find that Perkins’ trial counsel’s strategic decision in regards to Perkins’ tattoos was not so patently unreasonable that no reasonable attorney would have taken this course of action. And because counsel did not render deficient performance by failing to attempt to conceal Perkins’ facial tattoos from the jury, it is unnecessary for us to consider the second prong of Strickland. E.g., White v. State, 293 Ga. 825, 826 (2) (750 SE2d 165) (2013) (“If a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court.”).

Judgments affirmed.

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

Decided September 10, 2014.

Raina J. Nadler, for appellant (case no. A14A1018).

Ashleigh B. Merchant, for appellant (case no. A14A1019).

D. Victor Reynolds, District Attorney, Amelia G. Pray, Kimberly L. Schwartz, Assistant District Attorneys, for appellee.

       See Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq.

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

       Alston, Perkins, and Leonard will be collectively referred to as “defendants,” and Alston and Perkins will he collectively referred to as “appellants.”

       It appears that this victim commonly goes by Paul Santos instead of Paul Rivera and we will refer to him as “Santos.”

       This evidence included, but was not limited to, appellants’ and Leonard’s statements to police anchor others, Leonard’s testimony at trial, and evidence that defendants wore gang colors, had numerous tattoos indicating Bloods gang membership, and wrote or received letters in prison containing gang slang and symbols.

       Another potential juror was questioned after she indicated possible bias hut ultimately was not excused. In any event, this juror did not indicate any possible prejudice toward either appellant because of their appearance.

       The trial of this case occurred in 2010, well before the effective date of Georgia’s new Evidence Code. We note, however, that the new Evidence Code does not use the term “res gestae.” See OCGA § 24-8-803; Johnson v. State, 292 Ga. 785, 789 (4), n. 4 (741 SE2d 627) (2013).

       McClendon indicated that she called immediately but had been on hold for about five minutes.

       The caller referred to the person as “sir.’

       Perkins’ contention that his trial counsel should have moved for a mistrial “after the jury was clearly prejudiced by seeing” his tattoos likewise fails.

        Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A1176.
    AGUIRRE v. THE STATE.
    (763 SE2d 511)
   DOYLE, Presiding Judge.

Following a jury trial, George Luis Aguirre appeals from his felony conviction for obstructing a law enforcement officer, contending that the evidence was insufficient to support the conviction. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

So viewed, the evidence shows that police responded to a 911 call from a residence in Gwinnett County. According to the call, approximately seven males were outside fighting in a cul-de-sac. Two officers arrived and discovered a pile of bloody clothes and heard movement in the nearby tree line. The officers announced themselves as police and heard flight into the woods. The officers discovered hiding in the woods one suspect, who ignored commands to stop and show his hands. An officer radioed for backup, and shortly thereafter, additional officers arrived with sirens loudly blaring and blue lights flashing. The first suspect was then apprehended.

Shortly thereafter, a neighbor told an officer that she heard people moving in her back yard. Officer Jason Stafford entered her back yard to investigate, and a man, who was later identified as Aguirre, jumped over the privacy fence into the back yard. Officer Stafford loudly announced “police, don’t move,” several times and shined his flashlight on himself to illuminate his uniform and further identify himself as police to Aguirre. Ignoring Officer Stafford’s commands, Aguirre charged him and swung his fist at him. Officer Stafford parried the blow, and Aguirre fled over an eight-foot privacy fence as Officer Stafford unsuccessfully shot his stun gun at him. Aguirre was soon found hiding under a nearby tree and was apprehended without incident.

Aguirre was charged with one felony count of obstructing a law enforcement officer. Following a jury trial, he was convicted and sentenced as a first offender to five years, with one year to serve in prison. After the trial court denied his motion for new trial, Aguirre filed this appeal.

Aguirre contends that the evidence was insufficient to support his conviction for obstruction because he was too intoxicated from consuming alcohol to know that he was being engaged by a police officer when he charged and swung at Officer Stafford. He relies on McLendon v. State, which explained that “if the accused did not know that the sheriff was an officer of the law having the authority to [stop the accused], he could not be convicted.” But in that case, the sheriff made no attempt to identify himself or otherwise explain his authority to stop the horse buggy in which McLendon rode. Therefore, this Court concluded that the evidence showed that McLendon did not know he was resisting a law enforcement officer in the lawful discharge of his official duties.

Here, by contrast, Officer Stafford loudly yelled “police” several times to Aguirre and shined his flashlight on his uniform to identify himself to Aguirre. Also, there were police cars present in the area with flashing blue lights and loud sirens. This evidence supports a finding that Aguirre knew Officer Stafford was a police officer when Aguirre ignored Officer Stafford’s orders to stop and instead charged him. Further, Aguirre’s argument that he was too intoxicated to be convicted is unavailing, because “[voluntary intoxication shall not be an excuse for any criminal act or omission.”

Decided September 10, 2014.

Mary Erickson, for appellant.

Daniel J. Porter, District Attorney, Jennifer G. Hendee, Assistant District Attorney, for appellee.

Based on the record before us, the evidence was sufficient to support Aguirre’s conviction for obstruction.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-10-24 (b).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Citation omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       OCGA § 16-10-24 (b) provides:
      Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer ... is guilty of a felony and shall, upon conviction thereof, be punished by imprisonment for not less than one nor more than five years.

       12 Ga. App. 691 (78 SE 139) (1913).

       Id. at 692.

       See id.

       Cf. Reddick v. State, 298 Ga. App. 155, 157 (1) (679 SE2d 380) (2009).

       OCGA § 16-3-4(c). Aguirre does not argue, nor is there evidence, thathis intoxication was involuntary. See also Carter v. State, 248 Ga. App. 139, 140-141 (2) (546 SE2d 5) (2001) (sufficient evidence to convict of obstruction despite intoxication).


text:
    A14A1275.
    PIERRE-LOUIS v. THE STATE.
    (763 SE2d 513)
   DOYLE, Presiding Judge.

Chad Pierre-Louis was charged with family violence aggravated assault, cruelty to a child in the first degree, cruelty to a child in the second degree, and family violence battery. A Douglas County jury found him guilty of cruelty to children in the second degree, and he was acquitted of the remaining three charges. Pierre-Louis appeals, arguing that the trial court erred by denying his motion for a directed verdict because the evidence was insufficient to support his conviction. We disagree and affirm.

In Georgia, a person commits the offense of cruelty to children in the second degree “when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” “Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.”

When reviewing a challenge to the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed that on November 16, 2011, at approximately 10:00 p.m., witnesses observed a woman on the side of the road beating her crying three-year-old son with her hands and what appeared to be a stick while a man stood nearby and watched. Stephanie Langley, who was present when another woman who witnessed the beating ran into a gas station to call for help, raced to the scene to intervene. When Langley arrived, the mother was standing by the child with a stick, and the child was sitting on the ground. Langley honked her horn, stopped, and asked whether everything was okay. Pierre-Louis approached Langley’s car, calmly advised her that the mother was “just disciplining her child,” and asked for a cigarette.

Police arrived at the scene shortly thereafter, and they observed Pierre-Louis and the mother — his girlfriend — walking on the side of the road approximately 20 to 25 feet behind her son. The child was soaking wet and covered in mud from head to toe; he was bleeding from his mouth, had welts on his back and a three-inch scratch on his neck, and was shaking uncontrollably. The mother told police that she “beat” her son because he “had been disrespecting her.” Pierre-Louis told police that he and the mother took the child out of their house to discipline him for “being disrespectful by crying.” Pierre-Louis explained that he did not stop her from striking the child because he would go to jail if he “put his hands on [her].”

The mother, who was in custody at the time, testified at the trial that she had entered a guilty plea. She stated that she left home with her son to calm him down because he was crying loudly, and she repeatedly “beat” him with a tree branch before they returned home. According to the mother, Pierre-Louis arrived on the scene after she beat the child and was not present during the beating. Pierre-Louis’s father also testified that Pierre-Louis left the house alone on the night of the incident.

Decided September 11, 2014.

Mary Erickson, for appellant.

David McDade, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

The jury was entitled to disbelieve the testimony of the mother and Pierre-Louis’s father that Pierre-Louis was not present at the time the mother beat the child. Given the evidence that Pierre-Louis stood by and failed to intervene while the mother repeatedly struck the crying child with a tree branch, inflicting multiple injuries, the jury was authorized to conclude that Pierre-Louis “had failed to intervene to prevent the injuries ...[,] thereby demonstrating a wilful, wanton, or reckless disregard for the child’s safety.” Accordingly, there was sufficient evidence to support his conviction for cruelty to a child in the second degree.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-5-21 (b) (2), (k).

       OCGA § 16-5-70 (b).

       OCGA § 16-5-70 (c).

       OCGA § 16-5-23.1 (a), (f).

       OCGA § 16-5-70 (c).

       OCGA§ 16-2-1 (b).

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

       The emergency room physician testified the child had approximately 30 to 40 bruises.

       The mother was also charged with family violence aggravated assault, cruelty to children in the first degree, cruelty to children in the second degree, and family violence battery. Pierre-Louis was tried separately.

       See Whorton v. State, 318 Ga. App. 885, 888 (1) (b) (735 SE2d 7) (2012) (“[I]t is the function of the jury, not this Court, to judge the credibility of witnesses, resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. In so doing, a jury is authorized to believe or disbelieve all or any part of the testimony of the witnesses. Ultimately, as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.”) (punctuation omitted), quoting Knight v. State, 311 Ga. App. 367, 368 (1) (715 SE2d 771) (2011).

        Morast v. State, 323 Ga. App. 808, 812 (748 SE2d 287) (2013) (affirming conviction for second-degree cruelty to a child based on evidence that although the defendant did not personally cause bone fractures in the child, defendant was aware that the fractures were being inflicted by another person over a 13-month period, and the defendant failed to prevent the injuries from recurring). See OCGA §§ 16-5-70 (c); 16-2-1 (b). See also Johnson v. State, 292 Ga. 856, 858 (1) (742 SE2d 460) (2013) (affirming conviction for second-degree cruelty to a child based on evidence that the defendant “acted with willful, wanton, or reckless disregard for her son’s safety, hoth in failing to prevent [him] from accessing her medication and in failing to seek medical treatment once it became clear he was ill”).


author: BARNES, Presiding Judge.

text:
    A14A1376.
    C. P. R. v. HENRY COUNTY BOARD OF EDUCATION.
    (763 SE2d 725)
   BARNES, Presiding Judge.

Following a student disciplinary hearing, a hearing officer found that C. P. R., a student at Union Grove High School (“Union Grove”) in Henry County, had violated three provisions of the student handbook based on evidence that he possessed two pills containing codeine that he attempted to sell to other students. In light of these violations, the hearing officer imposed long-term suspension on C. P. R. for the remainder of the school year, but ruled that C. P. R. could serve his suspension at an alternative high school operated by the county. The Henry County Board of Education (the “Henry County Board”) thereafter entered a final decision adopting the findings and conclusions of the hearing officer. The State Board of Education (the “State Board”) affirmed the Henry County Board’s final decision, and the Superior Court of Henry County affirmed the State Board. This Court granted C. P. R.’s application for discretionary appeal to review whether there was evidence to support the final decision reached by the Henry County Board, and affirmed by the State Board and superior court, that C. P. R. had violated the student handbook. For the reasons discussed below, we conclude that there was sufficient evidence to support that determination and therefore affirm.

The Public School Disciplinary Tribunal Act. “In enacting the Public School Disciplinary Tribunal Act, OCGA § 20-2-750 et seq., the Georgia General Assembly recognized that local boards properly may limit students’ access to education in response to disciplinary infractions” and devised a procedural framework for the imposition of suspension or expulsion. D. B. v. Clarke County Bd. of Ed., 220 Ga. App. 330, 332 (1) (469 SE2d 438) (1996). The Act provides that

local boards of education shall appoint a disciplinary hearing officer, panel, or tribunal of school officials to hold a disciplinary hearing following any instance of an alleged violation of the student code of conduct where the principal recommends a suspension or expulsion of longer than ten school days[.]

OCGA § 20-2-753 (a). See Fulton County Bd. of Ed. v. D. R. H., 325 Ga. App. 53, 62 (3) (752 SE2d 103) (2013). At the disciplinary hearing, all parties have the right to be represented by counsel, OCGA § 20-2-754 (b) (1), and all parties must be “afforded an opportunity to present and respond to evidence and to examine and cross-examine witnesses on all issues unresolved.” OCGA § 20-2-754 (b) (3). Additionally, among other requirements, the proceedings must be transcribed or recorded and made available to all parties. OCGA § 20-2-754 (b) (5).

After receiving all of the evidence, the appointed disciplinary officer, panel, or tribunal “shall determine what, if any, disciplinary action shall be taken” against the student, which “may include, but is not limited to, expulsion, long-term suspension, or short-term suspension.” OCGA § 20-2-755. A party may then request that the determination be reviewed by the local board of education, which is charged with reviewing the record from the disciplinary hearing and rendering a “final” decision regarding whether and to what extent a student should be disciplined. OCGA § 20-2-754 (d). See also OCGA § 20-2-755 (noting that a local board may modify any action taken by the appointed hearing officer, panel, or tribunal).

Pursuant to OCGA § 20-2-754 (a), the Public School Disciplinary Tribunal Act incorporates the terms of OCGA § 20-2-1160, which authorizes every local board of education to serve as “a tribunal for hearing and determining any matter of local controversy in reference to the construction or administration of the school law” (subsection (a)) and sets forth the rules and procedures for appealing a final decision reached by a local board (subsections (b)-(e)). Specifically, OCGA § 20-2-1160 (b) provides that “[a]ny party aggrieved by a decision of the local board rendered on a contested issue after a hearing shall have the right to appeal therefrom to the State Board of Education,” and OCGA § 20-2-1160 (c) provides that a party can appeal from the decision reached by the State Board “to the superior court of the county wherein the local board of education is situated.” The appellate review of the local board’s final decision conducted by the State Board and the superior court is not “de novo” and “shall be confined to the record” that was before the local board. OCGA § 20-2-1160 (e).

An appeal to this Court from the decision of the superior court is by application for discretionary appeal, as provided for by OCGA § 5-6-35 (a) (1). See Clayton County Bd. of Ed. v. Wilmer, 325 Ga. App. 637, 640 (753 SE2d 459) (2014). If this Court grants the application, we then review the record from the disciplinary hearing in the light most favorable to the local board’s decision. Chattooga County Bd. of Ed. v. Searels, 302 Ga. App. 731, 732 (691 SE2d 629) (2010).

With this framework in mind, we turn to the record in the present case.

Factual Background. The record reflects that during the 2012-2013 school year, C. P. R. was a 19-year-old senior at Union Grove. On March 6, 2013, two assistant principals at Union Grove called C. P. R. to the school office and spoke with him after receiving a tip that he had been attempting to sell pills at school. When initially asked by the assistant principals if he had any pills or other contraband on him, C. P. R. replied, “No.” One of the assistant principals then searched C. P. R. and his book bag. While searching C. P. R., the assistant principal found two white pills loose in the pocket of his gym shorts underneath his sweat pants. The pills were Tylenol 3, which contains codeine, a Schedule II controlled substance. See OCGA § 16-13-26 (1) (A) (vii).

The assistant principals asked C. P. R. to explain why he was carrying the loose pills, and C. P. R. said that he was scheduled to have his wisdom teeth removed later that day and had a prescription. Upon further inquiry, however, C. P. R. admitted that he intended to sell the pills and had asked other students if they wanted to purchase them. C. P. R. said that he had not planned to carry out the sales at school, but rather on the school bus or in his neighborhood later that day. C. P. R. expressed remorse for his actions.

After the assistant principals interviewed and searched C. P. R. in the school office, a police officer assigned to work at Union Grove as a school resource officer conducted a separate interview with C. P. R. after advising him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). The officer was able to identify the pills as Tylenol 3 with codeine and questioned C. P. R. after he waived his Miranda rights. C. P. R. admitted that he had intended to sell the pills to students. According to C. P. R., his plan was to carry out the sales after school.

After speaking with C. P. R., the assistant principals and the school resource officer interviewed another student, F. R., who had ridden on the school bus with C. P. R. that morning and would sometimes “hang out” with him. F. R. provided a written statement in which he stated that while riding on the bus, C. P. R. had offered to sell him two codeine pills for $2 apiece. F. R. stated that when he declined to buy the pills, C. P. R. asked him if he knew of any other students who might be interested in purchasing them.

The assistant principals later interviewed two more students, J. M. and A. P, about C. P. R.’s attempts to sell pills to students. C. P. R. and J. M. were friends and rode the bus together. J. M. provided a written statement to the assistant principals in which he stated that while riding on the bus on the morning in question, C. P. R. had handed some pills to F. R., and F. R. had handed the pills back to C. P. R. J. M. further stated that before exiting from the bus, C. P. R. had accidentally dropped several pills on his seat but had been able to pick them up before going into school. According to J. M., C. P. R. had dropped approximately five white, round pills.

A. P. also provided a written statement to the assistant principals. A. P. stated that C. P. R. had approached him in the hallway at school and offered to sell some pills to him, but he had declined the offer. A. P. further stated that later that morning at school, C. P. R. had approached him again and offered to sell him three pills for $5, but he still had declined to purchase them.

In addition to interviewing the students, the assistant principals were able to obtain a video recording from the bus for the morning of the incident. In the bus video, consistent with the students’ written statements, C. P. R. can be seen handing something to F. R., who talks with C. P. R. before handing it back to him. Later in the bus video, consistent with what J. M. said in his written statement, C. P. R. can be seen accidentally dropping something on his bus seat and then retrieving it before exiting from the bus.

Based on C. P. R.’s interview statements, the written statements of the other students, and the bus video, school administrators temporarily suspended C. P. R. and charged him with three violations of the 2012-2013 Henry County Schools Student and Parent Handbook (the “Student Handbook”): possession of a drug (Section 2, Rule 6); selling of a drug (Section 3, Rule 5); and the commission of an act that constitutes a felony under Georgia law (Section 3, Rule 6). The Student Handbook authorized school administrators to take disciplinary action for violations that occurred, among other places, “[o]n school grounds” and “on the bus.”

Copies of the School Handbook had been distributed to Union Grove students at the beginning of the school year. C. P. R.’s mother signed an acknowledgment form stating that she had reviewed the Student Handbook and discussed its requirements with C. P. R., including the student code of conduct and disciplinary procedures.

Separately, C. P. R. was arrested and charged with possession of a controlled substance with intent to distribute it within 1,000 feet of a public school. See OCGA § 16-13-32.4 (a). That offense is a felony under Georgia law. See OCGA § 16-13-32.4 (b).

The Student Disciplinary Hearing. C. P. R.’s student disciplinary hearing was conducted on March 15, 2013 at Union Grove before a hearing officer appointed by the Henry County Board. C. P. R., his mother, and his attorney attended the hearing. Union Grove did not have legal representation at the hearing; rather, the designated school representative and prosecuting officer was one of the two assistant principals who had participated in the investigation of the case.

The assistant principal serving as the designated school representative testified, as did the other assistant principal and the school resource officer, to the events as previously summarized. The bus video also was introduced into the record and played for the hearing officer. Additionally, the three students who had been interviewed about C. P. R.’s attempted sale of the pills (F. R., A. P., and J. M.) testified at the hearing, where for the first time F. R. and A. P. recanted their prior written statements, and J. M. recanted the portion of his prior written statement in which he said that C. P. R. had approximately five pills on the bus. The school introduced into the record the prior written statements of the three students that contradicted their testimony at the hearing. C. P. R. elected not to testify, but his attorney called his mother as a witness, who testified that C. P. R. had been prescribed the codeine pills for dental pain and that he had been scheduled to have dental surgery on the afternoon of March 6, the day of the alleged attempted sale of the pills.

At the conclusion of the disciplinary hearing, the hearing officer found that C. P. R. had violated the three provisions of the Student Handbook with which he had been charged. The hearing officer ruled that C. P. R. would be suspended for the rest of the school year but could serve his suspension at an alternative school maintained by the school district.

C. P. R. appealed the hearing officer’s ruling to the Henry County Board. The Henry County Board reviewed the record from the hearing and adopted the hearing officer’s ruling in a final decision issued on April 10, 2013.

Subsequent Proceedings. C. P. R. appealed the decision of the Henry County Board to the State Board, which affirmed. He then appealed to the Superior Court of Henry County, which affirmed the State Board. C. P. R. thereafter filed an application for interlocutory review with this Court, which we granted. This appeal followed.

1. Before turning to C. P. R.’s specific enumerations of error, we first address what standard of review should apply in this case. “Not unlike the State Board and the superior court, this Court as an appellate body applies the ‘any evidence’ standard of review to the record supporting the initial decision of the [l]ocal [b]oard.” Searels, 302 Ga. App. at 732. See OCGA § 20-2-1160 (e); D. R. H., 325 Ga. App. at 58 (1 ); King v. Worth County Bd. of Ed., 324 Ga. App. 208 (749 SE2d 791) (2013). “Our review is deferential because states and local authorities have a compelling, legitimate interest and broad discretion in the management of school affairs.” (Citation and punctuation omitted.) King, 324 Ga. App. at 208. Hence, “[c]ourts are reluctant to substitute their judgment for that of a school board where its exercise of judgment does not violate the law. We presume that the actions of the board are not arbitrary and capricious, but are reasonable unless there is clear evidence to the contrary.” Brawner v. Marietta City Bd. of Ed., 285 Ga. App. 10, 15 (646 SE2d 89) (2007). See King, 324 Ga. App. at 208.

C. P. R., however, argues that the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq. (the “APA”), provides the proper framework for reviewing the decision of the Henry County Board. See OCGA § 50-13-19 (h) (l)-(6) (setting forth bases upon which the final decision of administrative agency can be reversed or modified by the superior courts); Pruitt Corp. v. Ga. Dept. of Community Health, 284 Ga. 158, 160-161 (3) (664 SE2d 223) (2008) (discussing APA framework). We disagree. Under the APA, a person who has exhausted all administrative remedies and who is aggrieved by a final decision of an agency in a contested case may petition for judicial review in the superior court, and may then seek judicial review of the superior court’s decision. See OCGA §§ 50-13-2 (1), (2); 50-13-19 (a); Atmos Energy Corp. v. Ga. Public Svc. Comm., 290 Ga. App. 243, 245 (1) (659 SE2d 385) (2008), aff’d, 285 Ga. 133 (674 SE2d 312) (2009). But it is well established that appeals from final decisions reached by local boards of education do not fall within the APA because local boards are “not included within any of the definitions of ‘agency’ contained in the statute.” Lansford v. Cook, 252 Ga. 414, 415-416 (314 SE2d 103) (1984). See OCGA § 50-13-2 (l); Rabon v. Bryan County Bd. of Ed., 173 Ga. App. 507 (1) (326 SE2d 577) (1985); Hood v. Rice, 120 Ga. App. 691, 694 (5) (a) (172 SE2d 170) (1969). Thus, student disciplinary appeals are governed by the Public School Disciplinary Tribunal Act and OCGA § 20-2-1160 rather than the APA.

It is true, as C. P. R. emphasizes, that the General Assembly amended the APA in 1990 to expressly state that the State Board fell within the statutory definition of an “agency.” See OCGA § 50-13-2 (1); Ga. L. 1990, p. 794, § l. However, the amendment is immaterial to the present case because the 1990 amendment did not include local boards within the amended definition of “agency,” and we must presume that the General Assembly’s decision to include the State Board but not local boards within that definition “was a matter of considered choice.” (Citation and punctuation omitted.) Deutsche Bank Nat. Trust Co. v. JP Morgan Chase Bank, N.A., 307 Ga. App. 307, 311 (1) (b) (704 SE2d 823) (2010) (in light of the legislature’s inclusion of language limiting who could sign an instrument on behalf of a corporation in one subsection of a statute, the absence of similar limiting language in another statutory subsection would be presumed to be a matter of considered choice by the legislature).

Indeed, we held in a decision rendered after the 1990 amendment that the APA does not govern appeals from a final decision reached by a local school board. See Johnson v. Pulaski County Bd. of Ed., 231 Ga. App. 576, 577 (1) (499 SE2d 345) (1998). This is because it is the local board that makes the final decision in a student disciplinary case, see OCGA § 20-2-754 (d), and the State Board only acts as an appellate body to review that final decision under the “any evidence” standard based solely on the record that was before the local board. See OCGA § 20-2-1160 (e); D. R. H., 325 Ga. App. at 57-58 (1); King, 324 Ga. App. at 208. “Our decision here need go no further than to point out that the [APA] does not apply to the State Board ... when, as here, the board sat as an appellate body and did not decide the controversy de novo but based its appellate decision on the evidence heard by the local board.” (Citation and punctuation omitted.) Palmer v. State Bd. of Ed., 143 Ga. App. 315 (238 SE2d 255) (1977). See Hood, 120 Ga. App. at 694 (5) (b). C. P. R.’s reliance on the APA’s framework for judicial review therefore is misplaced.

Lastly, C. P. R. relies upon our recent decision in D. R. H, 325 Ga. App. at 59 (2) to argue that the Henry County Board’s determination that he violated the Student Handbook was an erroneous conclusion of law that should be reviewed de novo. D. R. H. is clearly distinguishable and has no bearing on the present case. In D. R. H., we concluded that the issue whether the student’s disciplinary appeal was moot was a legal question that we would review de novo. Id. In contrast, the issue in the present case is whether C. P. R. violated the Student Handbook, a quintessentially factual question that we must review under the “any evidence” standard, construing the record in the light most favorable to the Henry County Board’s decision, and affording the Henry County Board broad discretion in its determination regarding whether and to what extent a student should be subject to discipline. See OCGA § 20-2-1160 (e); King, 324 Ga. App. at 208; Searels, 302 Ga. App. at 732.

2. C. P. R. contends that there was no evidence to support the conclusion reached by the Henry County Board, and affirmed by the State Board and superior court, that he violated Section 2, Rule 6 of the Student Handbook, which prohibits students from possessing “any drug.” According to C. P. R., the evidence failed to show that he violated this provision because it was undisputed that he had a prescription for the codeine pills and thus was not in possession of a “drug.” We are unpersuaded.

Significantly, the Student Handbook does not limit the definition of “drug” to substances that are illegal under Georgia criminal law; rather, Section 2, Rule 6 prohibits students from “[possessing any drug or unlawful substance.” (Emphasis supplied.) Moreover, the Student Handbook in a section entitled “Medicine” provides in relevant part:

Medicine
When students must take medicine at school, parents should bring medicine and related equipment to the principal or his/her designee and complete a Medication Authorization Form. Medicine cannot be given without written permission and instructions from the parent. Please do not send medicine to school by students.
All prescription and over-the-counter medicine must be kept in the school office unless approved by the principal. Students are subject to disciplinary action, including but not limited to short-term suspension, long-term suspension, or expulsion, if they possess medicine at school without the principal’s consent, distribute the medicine to other students, or use the medicine in a manner that is not prescribed. . . .

Read together, these provisions of the Student Handbook reflect that any substance used as a medicine is a “drug” that cannot be possessed by a student at school unless advance permission is obtained from the principal.

Based on the evidence previously summarized, construed in the light most favorable to the Henry County Board with all inferences drawn in its favor, there clearly was evidence that C. P. R. had codeine pills on his person at school without obtaining advance permission from the principal. Indeed, C. P. R. does not dispute that “he failed to follow the administrative procedure for bringing and taking prescription medication at school.” Accordingly, there was sufficient evidence to support a finding that C. P. R. was in possession of a “drug” in violation of Section 2, Rule 6 of the Student Handbook.

3. C. P. R. further contends that there was insufficient evidence to support the conclusion reached by the Henry County Board, and affirmed by the State Board and superior court, that he violated Section 3, Rule 5 of the Student Handbook, which prohibits students from

[u]sing, selling, buying, giving away, bartering, exchanging, receiving, or being under the influence of any drug or substance declared unlawful, any substance or chemical that is mood altering when taken, or any substance represented to be a drug or unlawful substance or admits to the use of any substances represented to be a drug prior to attending school or a school-related activity; or, possessing any drug paraphernalia.

According to C. P. R., there was insufficient evidence that he sold or attempted to sell the codeine pills to other students, and thus insufficient evidence that he violated Section 3, Rule 5. Again, we are unpersuaded.

The two assistant principals testified that C. P. R. confessed to them that he intended to sell the codeine pills and had asked other students if they wanted to purchase them, and the school resource officer likewise testified that C. P. R. admitted that he had intended to sell the pills to students. The school also introduced into evidence the written statement of F. R. in which he stated that C. P. R. offered to sell him the pills on the school bus; the written statement of A. P. in which he stated that C. P. R. had twice attempted to sell the pills to him in the school; and the written statement of J. M. in which he stated that he saw C. P. R. hand the pills to F. R. on the school bus, F. R. return the pills to C. P. R., and C. P. R. accidentally drop and then retrieve approximately five pills when exiting from the bus. This evidence, combined with the bus video footage corroborating the students’ written statements, was more than sufficient to support a finding that C. P. R. had violated Section 3, Rule 5 of the Student Handbook.

C. P. R. argues, however, that the evidence was insufficient because the assistant principals and the school resource officer were uncertain of the “specific language” used by him during his confession, and because school administrators failed to conduct a “thorough investigation” before deciding to charge him with violating the Student Handbook. C. P. R. further challenges the sufficiency of the evidence on the ground that the three students who wrote statements recanted them in whole or in part at the hearing.

C. P. R.’s arguments notwithstanding, any uncertainty expressed by the two assistant principals and the school resource officer regarding the exact wording of C. P. R.’s confession, and any questions regarding the adequacy of their investigation, went to the weight of their testimony, not its admissibility. And it was the role of the Henry County Board, not this Court, “to weigh the evidence and determine the credibility of the witnesses.” Searels, 302 Ga. App. at 733. Furthermore, the fact that the student witnesses recanted their prior written statements at the disciplinary hearing is immaterial for purposes of assessing the sufficiency of the evidence, because their written statements provided to school administrators were admissible as substantive evidence. See Lambert v. State, 325 Ga. App. 603, 606 (2) (754 SE2d 392) (2014) (pointing out that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence”) (citation and punctuation omitted); In the Interest of M. D. L., 271 Ga. App. 738, 740 (1) (b) (610 SE2d 687) (2005) (“The fact that [several witnesses] attempted to recant their ... testimony at trial is irrelevant because their written statements to police provided the necessary evidence, and in Georgia, a prior inconsistent statement of a witness subject to cross-examination is admissible as substantive evidence.”).

Additionally, C. P. R. argues that the school administrators made an audio recording of his confession to them, but failed to produce it and introduce it into evidence at the hearing or provide an explanation for why it was not entered into evidence. Consequently, C. P. R. argues that he was entitled to a rebuttable presumption that the audio recording was unfavorable to Union Grove under OCGA § 24-14-22. That statute provides:

If a party has evidence in such party’s power and within such party’s reach by which he or she may repel a claim or charge against him or her but omits to produce it or if such party has more certain and satisfactory evidence in his or her power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against such party is well founded; but this presumption may be rebutted.

C. P. R., however, has failed to show that he raised the issue of the presumption in the disciplinary hearing or elicited a ruling from the hearing officer or the Henry County Board, which would have determined in the first instance if there was a basis for imposing the presumption. Accordingly, he has waived the issue for purposes of appeal. See Kelley v. Blue Line Carriers, LLC, 300 Ga. App. 577, 580 (1) (685 SE2d 479) (2009). In any event, even if the presumption were to apply with respect to what was contained on the audio recording (which we need not determine), the testimony of the two assistant principals and the school resource officer, combined with the written statements of the other students and the bus video, clearly would have been sufficient to allow the factfinder to conclude that the presumption had been rebutted.

For these combined reasons, C. P. R.’s challenge to the sufficiency of the evidence is without merit. The Henry County Board was authorized to determine that C. P. R. violated Section 3, Rule 5 of the Student Handbook, and the State Board and superior court properly affirmed that determination.

4. Finally, C. P. R. contends that there was insufficient evidence to support the conclusion reached by the Henry County Board, and affirmed by the State Board and superior court, that he violated Section 3, Rule 6 of the Student Handbook, which prohibits students from committing any act that constitutes a felony under Georgia law. We disagree because there was evidence that C. P. R. committed the felony offense of possession of a controlled substance with intent to distribute it within 1,000 feet of a public school.

Pursuant to OCGA § 16-13-32.4 (a), it is

unlawful for any person to . . . possess with intent to distribute a controlled substance or marijuana in, on, or within 1,000 feet of any real property owned by or leased to any public or private elementary school, secondary school, or school board used for elementary or secondary education.

As previously noted, codeine is a Schedule II controlled substance. See OCGA § 16-13-26 (1) (A) (vii). Furthermore, even if a defendant has a valid prescription for the controlled substance, he can still be found guilty under OCGA § 16-13-32.4 (a) if he possesses the controlled substance with the intent to distribute it. See Atkinson v. State, 280 Ga. App. 635, 637 (634 SE2d 828) (2006). Here, the evidence as previously discussed — particularly the written statement of A. P. in which he stated that C. P. R. had twice attempted to sell the pills to him on school grounds — was sufficient to authorize a finding that C. P. R. possessed pills containing codeine with the intent to distribute them within 1,000 feet of a public school, and thus committed an act constituting a felony under Georgia law.

C. P. R. argues that the State Board and the superior court should have reversed the Henry County Board’s finding that he committed an act constituting a felony because subsequent to the disciplinary hearing, a Henry County grand jury returned a “no bill” to his indictment on that felony charge. But the “no bill” was not part of the disciplinary hearing record and thus could not be considered by the State Board or superior court. See OCGA § 20-2-1160 (e) (providing that “the review by the state board or the superior court shall be confined to the record”); D. R. H., 325 Ga. App. at 58 (1) (superior court erred in considering materials that were not part of the record from the disciplinary hearing and issues that were not raised before the local board). In any event, the record of a “no bill” or of an acquittal in a criminal prosecution would serve as no bar to a student disciplinary proceeding, given that criminal proceedings have a more stringent burden of proof. See, e.g., McGuire v. Witcher, 201 Ga. App. 685, 686 (411 SE2d 875) (1991) (noting that results from a criminal proceeding generally do not have a preclusive effect in other types of actions, given that “the weight of evidence required for a finding are different”). Consequently, C. P. R.’s argument lacks merit, and there was sufficient evidence to find that he violated Section 3, Rule 6 of the Student Handbook.

Decided September 15, 2014

Shelly C. Anand, Mary I. Dickerson, Lisa J. Krisher, Phyllis J. Holmen, for appellant.

Smith, Welch, Webb & White, A. J. Welch, Jr., Lajuana C. Ransaw, Santana T. Flanigan, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Although the term of C. P. R.’s suspension has now expired, the issue whether he violated the student handbook, and thus whether the infraction should remain on his school disciplinary record, is notmoot. See Fulton County Bd. of Ed. v. D. R. H., 325 Ga. App. 53, 60-61 (2) (752 SE2d 103) (2013).

       The APA defines “agency” as
      each state board, bureau, commission, department, activity, or officer authorized by law expressly to make rules and regulations or to determine contested cases, except the General Assembly; the judiciary; the Governor; the State Board of Pardons and Paroles; the State Financing and Investment Commission; the State Properties Commission; the Board of Bar Examiners; the Board of Corrections and its penal institutions; the State Board of Workers’ Compensation; all public authorities except as otherwise expressly provided by law; the State Personnel Board; the Department of Administrative Services or commissioner of administrative services; the Technical College System of Georgia; the Department of Labor when conducting hearings related to unemployment benefits or overpayments of unemployment benefits; the Department of Revenue when conducting hearings relating to alcoholic beverages, tobacco, or bona fide coin operated amusement machines or any violations relating thereto; the Georgia Tobacco Community Development Board; the Georgia Higher Education Savings Plan; any school, college, hospital, or other such educational, eleemosynary, or charitable institution; or any agency when its action is concerned with the military or naval affairs of this state. The term “agency” shall include the State Board of Education and Department of Education, subject to [certain] qualifications ....
      OCGA § 50-13-2 (1).

       While many of the appeals in this area concern teacher employment issues decided by local boards of education, both school employment appeals and student disciplinary appeals are governed by the same statute, OCGA § 20-2-1160. See OCGA §§ 20-2-754 (a); 20-2-940 (f).

       Even before the 1990 amendment, this Court had construed the APA as including the State Board within the statutory definition of “agency.” See Dept. of Ed. v. Kitchens, 193 Ga. App. 229, 232 (2) (387 SE2d 579) (1989).

       There are other contexts where the State Board is not acting merely as an appellate body and is governed by the APA. See, e.g., Kitchens, 193 Ga. App. at 232 (2) (State Board required to follow procedures mandated by APA in promulgating teacher certification regulations).

       As the Supreme Court of the United States has explained,
      standards of conduct for schools are for school administrators to determine without second-guessing by courts lacking the experience to appreciate what may be needed.... There is no need ... to explain the imperative of keeping drugs out of schools, or to explain the reasons for the school’s rule banning all drugs, no matter howhenign, without advance permission. Teachers are not pharmacologists trained to identify pills and powders, and an effective drug ban has to he enforceable fast.

        Safford Unified School Dist. No. 1 v. Redding, 557 U. S. 364, 372 (III) (A), n. 1 (129 SCt 2633, 174 LE2d 354) (2009).

       Embedded in this enumeration of error, C. P. R. also argues that the disciplinary hearing officer abused his discretion in denying his request to sequester the assistant principal who was the prosecuting officer for Union Grove. Specifically, C. P. R. contends that the assistant principal should not have been allowed to remain in the hearing room during the testimony of the student witnesses, and that the hearing officer should have replaced the assistant principal with other school personnel during the students’ questioning, given that the principal was himself a witness at the hearing and had been involved in the initial interviews of the students when they wrote out their statements inculpating C. P. R.
      As an initial matter, “a party cannot expand its enumerations of error through argument or citation in its brief.” Stockbridge Dental Group, P.C. v. Freeman, 316 Ga. App. 274, 275, n. 2 (728 SE2d 871) (2012). In any event, the record reflects that Union Grove did not have legal representation at the discipline hearing, which is less formal than a criminal or civil trial. See generally Nash v. Auburn Univ., 812 F2d 655, 664 (II) (A) (2) (a) (11th Cir. 1987) (drawing distinction between the academic disciplinary process and criminal and civil trials). Rather, the assistant principal was the sole representative of Union Grove and was responsible for serving as its chief prosecuting officer to establish its allegations against C. P. R. at the hearing. In this context, the presence of the assistant principal was “essential to the presentation of [Union Grove’s] cause,” and, therefore, he was exempted from the rule of sequestration. See OCGA § 24-6-615 (3).

       Although somewhat unclear, it appears from the record that only the interview conducted by the school resource officer was recorded.


author: RAY, Judge.

text:
    A14A0796.
    YOUNG v. THE STATE.
    (763 SE2d 735)
   RAY, Judge.

After a bench trial, Joshua Keith Young was convicted of hijacking a motor vehicle (OCGA § 16-5-44.1 (b)); armed robbery (OCGA § 16-8-41 (a)); two counts of aggravated assault (OCGA § 16-5-21 (b) (1), (2)); and three counts of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b)). He appeals from the denial of his motion for new trial contending that the trial court erred in failing to find that he received ineffective assistance of counsel. For the reasons that follow, we disagree and affirm.

Young does not contest the sufficiency of the evidence sustaining his conviction. Construed in favor of the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that on August 19, 2011, the victim, Christopher Reyas, agreed to give Young and some other men, whom he did not know, a ride to someone’s house. When Reyas drove into the driveway, one of the men whom he did not know pulled him out of the car, and several people beat him up. Reyas managed to get back into the car, and he, Young, and another man left the scene. During the ride, however, Young pulled Reyas’ hair and punched and kicked him. Young pointed a gun at Reyas and demanded that he get out of the car. Fearing for his life, Reyas complied, and Young drove away in Reyas’ car.

At trial, before hearing testimony, the trial judge questioned Young about whether he wanted a bench trial or a jury trial. Young stated that he wanted a bench trial and that he understood the rights he was waiving. The trial judge explained the difference between a bench trial and a jury trial, emphasized that Young had the right to a jury trial if he wanted one, and discussed possible sentencing parameters. Young then discussed the waiver with his counsel and signed a statement waiving his right to a jury trial. The waiver was read for the record. As Young concedes in his appellate brief, “The Court questioned the Defendant at length during the trial of the case, with regard to the waiver of the jury trial. The Court provided adequate time and insisted the waiver be in writing. . . . The Court made sure that the waiver of Defendant’s right to a jury trial was a knowing waiver.”

Young contends that his counsel provided ineffective assistance. To prevail on an ineffective assistance claim, Young

was required to show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability [that] the outcome of the proceedings would have been different. . . .
The likelihood of a different result must be substantial, not just conceivable. . . . [W]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

1. Young argues that his trial counsel provided ineffective assistance by failing to provide him with “the requisite knowledge ... to make an informed and intelligent waiver of his right to a jury trial.”

At the hearing on Young’s motion for new trial, his trial counsel testified that he explained the differences between a bench trial and a jury trial to his client, and that “Mr. Young had expressed to me that he did not want a Jury Trial, he wanted a Bench Trial. . . [because] he knows what his [criminal] record was and he didn’t want other people to hear[.]” Young’s trial counsel also said his client wanted a bench trial because he did not believe that the victim would come to court. “I told him at that point that... the alleged victim was in court, ready to go to court and did he still want to go with the [b]ench [t]rial or want to go with the [j]ury [t]rial. He still elected to go with the [b] ench [t]rial.” Trial counsel testified that he advised Young to choose a jury trial “based on the charges, your record and things like that[,]” and also considering what Young apparently knew or believed about the trial judge. Trial counsel testified that he did not coerce Young into having a bench trial, but, rather, reiterated his belief that Young should have a jury trial “based on ... the inconsistency in the alleged victim” about the event which could lead to an acquittal.

By contrast, Young testified at the motion for new trial hearing that his counsel told him he would get “an automatic not guilty verdict because [counsel] doesn’t believe that [the] victim was going to show up [.]” Young stated that his counsel’s theory was to “make the State believe that we wanted a jury trial, but when it came to it, to select a [b] ench [t] rial to get that not guilty verdict because he told me the victim was not in the courtroom.” Young testified that he did not know the victim was at court until the victim was called to testify.

“When considering a claim of ineffective assistance, the trial court, not this Court, is the judge of witness credibility, and a trial court’s denial of an [ineffective assistance of counsel] claim based on conflicting evidence is not clearly erroneous.” (Citation and punctuation omitted.) Wallin v. State, 285 Ga. App. 377, 381 (646 SE2d 484) (2007) . Here, the trial court “was authorized to believe trial counsel’s testimony over that of [Young].” (Citation omitted.) Thomas v. State, 297 Ga. App. 416, 418 (1) (677 SE2d 433) (2009) (trial court authorized to believe testimony of counsel over that of defendant and his mother as to whether counsel discussed or adequately discussed the differences between a bench trial and a jury trial with defendant). Further, the trial court did not err in denying Young’s motion for new trial, as Young failed to show deficient performance by counsel. See Defrancisco v. State, 289 Ga. App. 115, 119 (1) (e) (656 SE2d 238) (2008) (rejecting contention that trial counsel failed to advise defendant of consequences of jury trial waiver where counsel testified that he discussed the issue with defendant several times); Wroge v. State, 278 Ga. App. 753, 755 (2) (629 SE2d 596) (2006) (rejecting ineffectiveness claim where counsel testified that he and defendant several times discussed advantages and disadvantages of jury trial and potential for juror bias in defendant’s case).

2. Young also argues that his trial counsel failed to investigate the case adequately because he did not call certain witnesses whose testimony could have changed the outcome of the trial.

At the hearing on the motion for new trial, Young testified that he prepared a witness list at his attorney’s request and told him about it two weeks before trial, but that trial counsel never retrieved it. Young said he gave the list to counsel on the day of trial, and that counsel tried to call some of the witnesses at the break but said it was “too late.” However, Young also testified that trial counsel did not look at or take the witness list. At the motion for new trial hearing, his handwritten witness list was tendered into evidence. Young’s father testified that he “tried to give [trial counsel] some witnesses . . . but when I said something to him he just acted like he didn’t want them.” He testified that he had correct names and addresses for the witnesses, including a man named “Srilai,” but he did not offer any last name or bring that information to the motion for new trial hearing.

By contrast, Young’s trial counsel testified that the only witness list he received was from the district attorney’s office. He stated that he interviewed the victim and some of Young’s family members who were not witnesses. He also spoke with Young’s sister, Autumn Young, but only about the progress of the case. Trial counsel testified that he spoke with one of the individuals who was in the car with Young, but could not find a third person who was in the car. He did not identify either person.

At the motion for new trial hearing, Young called two people, including his sister, from the witness list that he said he had tried to give to his lawyer. He also called a man named Srilai Sripasert. Young testified that Sripasert was not on his list because he did not know that witness’s full name.

Autumn Young testified that she saw several people, none of whom she named, beat up the victim. She testified that her brother tried to help the victim and then drove the victim away from the scene in the victim’s car. Her brother later returned and told her that the victim “wanted out of the car, he wouldn’t let me help him.” She indicated that the victim had been left “on the side of the road[.]” She testified that she was on methamphetamine at the time she witnessed the incident. She offered no testimony as to whether her brother took the victim’s car with or without the victim’s permission.

Another witness on the list, Christopher Bause, testified that on the night in question, he and Young tried to break up the fight, but so many people were hitting the victim that it was hard to identify who they were. He testified that Young drove away in the victim’s car with the victim and Sripasert. He testified that Young was not beating up the victim, but offered no testimony as to whether the victim gave Young permission to drive or take his car.

Finally, Young called Sripasert. Sripasert testified that he saw the victim get beaten up, and that Young drove him and the victim away from the scene because the victim did not want to drive. He offered no testimony about whether the victim allowed Young to drive his car. He testified that Young and the victim were arguing and that Young stopped the car and told the victim to get out and drive, but that the victim got out and walked off, and Young drove away in the victim’s car. He testified that he did not see Young threaten the victim or pull a gun on him.

From the bench, the trial court stated that after hearing the testimony from Young’s witnesses, “none of the testimony presented today would have made a reasonable probability of a different outcome.” He also stated that Sripasert’s testimony was cumulative of Young’s.

As noted above, trial counsel testified that the only witness list he received was from the district attorney’s office, and that he tried to find one of the witnesses who was in the car with Young, but was unable to do so. Even where, as here, a defendant presents testimony from witnesses whom he alleges trial counsel should have called, in the context of counsel’s reason for not calling the witnesses, “the trial court was authorized to credit counsel’s testimony regarding . . . witnesses whose names he was given.” (Citation omitted.) Woods v. State, 275 Ga. 844, 847-848 (3) (a) (573 SE2d 394) (2002). Although Young’s testimony, and that of his father, conflicted with trial counsel’s testimony regarding the names of witnesses that were provided, “[i]t is within the trial court’s discretion to resolve conflicting testimony between trial counsel and a defendant at a hearing on motion for new trial.” (Citation and punctuation omitted.) Driggers v. State, 295 Ga. App. 711, 718-719 (4) (d) (673 SE2d 95) (2009) (even though witness, who was not called to testify at trial, offered potentially exculpatory testimony at motion for new trial hearing, where defendant’s testimony conflicted with counsel’s over whether counsel had been given the witness’s name, trial court was entitled to believe counsel and to find no ineffectiveness). Here, the trial court was authorized to resolve the conflicting testimony and find that trial counsel was not given any witness list other than the one from the district attorney’s office, and was unable to find one of the witnesses who was in the car. “[Young] thus has failed to show that his counsel was deficient in failing to call... [the] witness [es] at trial.” (Citations omitted.) Id. at 719 (4) (d). Further, our Supreme Court has determined that an attorney cannot be found deficient “for failing to interview and call a ... witness of whom [he] was not informed[.] ... Trial counsel cannot be held ineffective for failing to track down a witness whose whereabouts is unknown.” (Citations and punctuation omitted.) McIlwain v. State, 287 Ga. 115, 118 (5) (694 SE2d 657) (2010). Counsel also testified, as noted above, that he interviewed one witness who was in the car with the victim. That witness was not called at trial, and Young elicited no testimony from counsel as to who that witness was or why counsel did not call the witness. Whether to call a witness is a matter of trial strategy and tactics, which we presume were reasonable. Dechant v. State, 294 Ga. App. 23, 26 (6) (b) (668 SE2d 501) (2008).

Decided September 16, 2014.

Leon Hicks, for appellant.

Tracy Graham-Lawson, District Attorney, Frances C. Kuo, Assistant District Attorney, for appellee.

Having determined that counsel’s performance was not deficient, we need not analyze the reasonable probability prong of the ineffective assistance test. Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009). Although the trial court found that counsel was not ineffective because there was no reasonable probability of a different outcome, a ruling right for any reason will be affirmed. Davis v. State, 287 Ga. 414, 415 (696 SE2d 644) (2010).

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       Young was found not guilty of battery (OCGA § 16-5-23.1 (a)).

       Young’s appellate brief does not comply with Court of Appeals Rule 25 (c) (1), which requires that the sequence of arguments in the brief follow the order of the enumeration of errors and be numbered accordingly. This rule “is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration. By failing to comply with the rule, [Young has] hindered [this] Court’s review of [his] assertions].]” Brown v. Cooper, 237 Ga. App. 348, 348 (514 SE2d 857) (1999). Further, a party may not expand his enumerations through argument or citation in his brief, and matters not enumerated as error will not be considered on appeal. Brown v. State, 310 Ga. App. 835, 835, n. 1 (714 SE2d 395) (2011).


author: Ray, Judge.

text:
    A14A1096.
    THE STATE v. FEDRICK.
    (763 SE2d 739)
   Ray, Judge.

The State appeals from the trial court’s order granting Shaun Fedrick’s motion to suppress evidence of the results of a state-administered chemical test of his breath following his arrest for driving under the influence of alcohol. Because the trial court erroneously found that the police officer’s inclusion of certain words during his reading of the implied consent notice altered the substance of the notice and affected Fedrick’s consent to testing, we reverse.

1. We first address the issue of whether the State preserved the issue for appeal by providing a proffer of the results of the breath test. We have held that

[w]here the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a definite sort so that both the trial court and the appellate court can know whether the evidence really exists. In the absence of such a proffer, the assignment of error is so incomplete as to preclude its consideration by this [C]ourt.

(Citations omitted.) State v. Winther, 282 Ga. App. 289, 291 (638 SE2d 428) (2006). Here, the record shows that a copy of the citation was filed with the trial court on June 10, 2013, some five months before the hearing on the motion to suppress. This document shows that Fedrick submitted to a state-administered breath test and that the results indicated a blood alcohol concentration of 0.165 grams. As the record does indicate that Fedrick submitted to a breath test and that the results showed an unlawful blood alcohol concentration, we shall address the merits of the appeal.

2. In its sole enumeration of error, the State contends that the trial court erred in granting the motion to suppress based on the officer’s reading of the implied consent notice. We agree.

On appeal from the trial court’s grant of a motion to suppress, we construe the evidence most favorably to uphold the ruling of the trial court. However, where the evidence is uncontroverted and there is no issue regarding witness credibility, we review the trial court’s ruling “to ensure that there was a substantial basis for it. The trial court’s application of the law to undisputed facts is subject to de novo review.” (Citations and punctuation omitted.) State v. Terry, 236 Ga. App. 248, 249 (511 SE2d 608) (1999). Accord State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

The undisputed facts show that, on June 1, 2013, a police officer arrested F edrick for driving under the influence of alcohol in violation of OCGA § 40-6-391. The officer read Fedrick the implied consent warning applicable to suspects over the age of 21 pursuant to OCGA § 40-5-67.1 (b) (2).

The notice set forth in OCGA § 40-5-67.1 (b) (2) reads as follows:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.08 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?

At the motion to suppress hearing, a video/audio recording of the traffic stop, which included the officer’s reading of the implied consent notice, was played for the trial court. The record shows that the officer read the notice to Fedrick twice. During the first reading, the officer recited the fifth sentence of the notice as follows (the officer’s additional wording is in bold type):

After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances for the purposes of determining at your own expense and from qualified personnel of your own choosing.

During the second reading, the officer inserted the phrase “for the purpose” in the same part of the sentence where he had used the phrase “for the purposes of determining.”

In its order granting the motion to suppress, the trial court found that the inclusion of the additional wording in both readings of the sentence concerning the right to an independent test “changed the meaning of the sentence, and resulted in [Fedrick] being misinformed of his rights to such a degree that said misinformation may have affected his decision to consent.” In making its decision, the trial court relied on our holdings in Kitchens v. State, 258 Ga. App. 411 (574 SE2d 451) (2002) and Terry, supra.

However, the trial court’s reliance on Kitchens and Terry is misplaced. In Kitchens, we held that the trial court erred in failing to exclude the results of the defendant’s breath test because the officer overstated the legal limit of alcohol concentration that may result in the revocation of his license, and he implied that the defendant’s out-of-state driver’s license would be suspended if she refused to take the test. This information was inaccurate, and we held that this misinformation required exclusion because it likely affected the defendant’s decision to consent to testing. Id. at 412-415 (1). In Terry, we affirmed the trial court’s suppression of evidence of a driver’s refusal to take a blood test where the police officer implied that obtaining bond was a pre-condition to independent testing. We agreed with the trial court that this misinformation could have affected the defendant’s decision to refuse testing. Id. at 248-250. In the instant case, however, there was no misinformation which could have affected Fedrick’s consent to testing.

OCGA § 40-5-67.1 (b) provides that the applicable implied consent notice “need not be read exactly so long as the substance of the notice remains unchanged.” Thus, the legislature has allowed for human error in the reading of the notice, such as the inclusion of additional wording, so long as the substance of the notice was not affected. See Satterfield v. State, 252 Ga. App. 525, 526-527 (1) (556 SE2d 568) (2001) (insertion of the word “automatically’ in sentence concerning suspension of license did not alter substance of implied consent notice); State v. Payne, 236 Ga. App. 338, 338-339 (512 SE2d 292) (1999) (various insertions and omissions of words in implied consent notice didnot alterits substance); State v. Mayo, 235 Ga. App. 107, 107 (508 SE2d 475) (1998) (insertion of the words “a” and “the” did not change the substance of the implied consent notice).

It is clear from the substance of the notice that the purpose of the testing is to determine whether the defendant is under the influence of alcohol or drugs, and that the defendant has a right to independent testing after submitting to the state-administered test. The officer’s inclusion of the phrases “for the purposes of determining” and “for the purpose” when advising Fedrick of his right to independent testing was a partial reference to the underlying purpose of the testing. As we find that the inclusion of the additional wording did not alter the substance of the notice, the trial court erred when it granted Fedrick’s motion to suppress.

Decided September 16, 2014

Barry E. Morgan, Solicitor-General, Dana J. Norman, Danielle E. Russell, Michael D. Deariso, Assistant Solicitors-General, for appellant.

Robert W. Chestney, Laura K. Wester, for appellee.

Judgment reversed.

Andrews, P. J., and McFadden, J., concur.

       Fedrick also argued at the suppression hearing that the police included an additional word in the second sentence of the notice during the first reading, wherein the officer stated: “If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state may be — will be suspended for a minimum period of one year.” However, at the hearing the trial court noted that the officer recited this sentence correctly during the second reading of the notice, and the trial court did not base its decision on the initial misstatement by the officer.