text:
    A11A1083.
    GEORGIA DEPARTMENT OF CORRECTIONS v. COUCH.
    (718 SE2d 875)
   Doyle, Judge.

David Lee Couch filed this premises liability action against the Georgia Department of Corrections (“the Department”) seeking damages for physical injuries he sustained while working in a prison detail at Walker State Prison. The Department appeals the judgment entered on the jury’s verdict in favor of Couch. For the reasons that follow, we affirm.

In an appeal from a jury verdict, this Court must affirm the judgment “if there is any evidence to support it, and the evidence is to be construed in a light most favorable to the prevailing party with every presumption and inference in favor of sustaining the verdict.”

So viewed, the record shows that on July 9, 2004, while housed as an inmate at Walker State Prison, Couch volunteered to paint the warden’s house, which was located across from the prison. The house was under renovation, and another crew had removed the flooring in the kitchen and dining area of the home, leaving the floor joists exposed, because the floor and some of the joists were water-damaged and rotted. By the time of the incident, the Department was in the process of replacing the floor joists, but although some of the floor joists in the dining area had been replaced, the crew had left some of the joists that were dry-rotted.

When Couch arrived at the house, he and the other members of the painting crew traversed the kitchen and dining area by walking along the floor joists in order to retrieve painting supplies stored in the garage and to access the second floor of the home where they were painting. Couch and the other crew members were not warned about the dry rot and were not told to stay out of the kitchen and dining area. Couch testified that walking across floor joists is a common practice in residential construction and generally is not considered dangerous.

After a few times of walking through the area over the course of the day, Couch was proceeding back to the second floor when one of the joists in the dining area deteriorated and gave way beneath his foot, causing him to fall and land with his legs straddling a joist. As a result of the fall, Couch suffered a severed urethra.

The jury returned a verdict in favor of Couch in the amount of $105,417. The verdict form did not require the jury to specifically address whether Couch was an invitee or licensee. The trial court entered judgment on that verdict. The Department appeals, asserting that the trial court erred by (1) denying its motion for a directed verdict; (2) overruling objections regarding the admission of certain evidence; (3) denying its motion for mistrial; and (4) refusing to give a jury charge on the issue of voluntary departure.

1. First, the Department argues that the trial court erred by denying its motion for a directed verdict.

“A directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.”

(a) Specifically, the Department contends that Couch should have been classified as a licensee to whom the Department only owed a duty to refrain from wilfully or wantonly injuring Couch.

[Couch]’s status as either a licensee or an invitee determines the duty of care that [the Department owed him]. An invitee is someone whom a landowner, by express or implied invitation, induces or leads to come upon his premises for any lawful purpose. A licensee, on the other hand, is a person who is neither a customer, a servant, nor a trespasser, who does not stand in any contractual relation with the landowner, and who is permitted to go on the premises merely for her own interests, convenience, or gratification. The generally accepted test to determine whether one is an invitee or a licensee is whether the party coming onto the business premises had present business relations with the owner or occupier which would render [his] presence of mutual benefit to both, or was for business with one other than the owner or occupier.

The Department contends that as a matter of law Couch should have been deemed to be a licensee, either because of his status as a prisoner or because he left the area of the home in which he was invited to be and entered an area of the home where he was not invited and then became injured. Nevertheless, we need not address this question.

When there is conflicting evidence as to the legal status of the injured party, the question is rightfully left to the jury. Here, the trial court properly denied the Department’s motion for directed verdict as to the issue of duty because there was conflicting evidence as to whether Couch was in the warden’s home as a benefit to the Department and whether Couch was warned to stay out of the kitchen and dining area. The trial court correctly charged the jury on the law of duties of care owed to licensees and invitees, and evidence presented at trial supported a finding that Couch was an invitee at the time he was injured. Accordingly, the Department’s argument is without merit.

(b) The Department also contends that Couch had equal knowledge of the dry rot that caused his fall because he had traversed the floor joists several times before he fell and that Couch failed to exercise due care for his own safety as a matter of law. We disagree.

The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable. It is the plaintiffs knowledge of the specific hazard precipitating a slip and fall which is determinative, not merely [his] knowledge of the generally prevailing hazardous conditions or of hazardous conditions which plaintiff observes and avoids.

In this case, the trial court correctly allowed the case to go to a jury because although there was no question that Couch was aware of the phenomenon of dry rot in general and was aware that one could fall from a floor joist, there was no evidence that he was aware of any dry rot in these particular floor joists. Therefore, a question of fact existed as to whether Couch was aware or should have been aware of the hazard after walking over the area prior to his fall. Moreover, the trial court also correctly determined that a jury question existed as to the issue of “[w]hether [Couch] exercised that duty of care commensurate with [his] knowledge [and] . . . exercised due care for [his] personal safety.” “As noted in Robinson v. Kroger Co., what constitutes a reasonable lookout depends on all the circumstances at the time and place. It [was] for the jury to determine whether . . . [Couch] should . . . have been more vigilant for [his] own safety.”

(c) The Department contends that the trial court erred by denying its motion for a directed verdict because Couch assumed the risk of injury by traversing the floor joists. Again, we disagree.

“[E]xcept in plain, palpable!,] and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of contributory negligence and assumption of risk are for the jury.”

Absolutely fundamental to any assumption of the risk analysis is knowledge of the risk involved, which must be both actual and subjective — the knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. Significantly, a plaintiffs comprehension or general understanding of nonspecific risks that might be associated with the activity at issue is not sufficient. Rather, in its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

The undisputed testimony of the record established that Couch had previously worked in the construction industry and was of the opinion that walking along exposed floor joists was a reasonable, common practice, and that he expected any rotten areas to be cordoned off or warned about; although he was aware that wood could rot, he was not aware of a specific risk that the wood over which he walked was rotten so as to expose him to the risk of having a portion of the joist deteriorate under his foot as he traversed the area. Thus, at the very least, there was a question of fact as to whether Couch assumed the risk of the fall by traversing the floor joists rather than walking around the outside of the home, and the trial court did not err by refusing to grant a directed verdict based on this argument.

2. Next, the Department contends that the trial court abused its discretion by denying its motion for mistrial after the admission of the opinion of Dr. Joseph Paris regarding the liability of the Department for the cost of Couch’s treatment. We disagree.

When ruling on a motion for mistrial, a trial court is vested with broad discretion, and this Court will not disturb the ruling absent a manifest abuse of discretion. “In reviewing the trial court’s refusal to grant a mistrial, we consider whether the remarks affected or infected the verdict, and whether it is apparent that a mistrial is essential to the preservation of the right to a fair trial.”

Couch presented the testimony of Dr. Norman Fitz-Henley via deposition at trial. Prior to trial, the parties’ attorneys conferred regarding the deposition, and the two had agreed to redact certain portions. Couch’s attorney inadvertently failed to actually redact the agreed-upon portions of the deposition transcript that was read into evidence. As a result, during Fitz-Henley’s testimony regarding evidence of a refusal-of-treatment form Couch had signed prior to leaving prison, Couch’s attorney questioned him about an e-mail discussion between Paris and another individual about Couch. Couch’s attorney followed up a question about the refusal of treatment issue by reading an additional portion of Paris’s e-mail, which stated that, “[Couch’s] injury occurred as a result of working for us. If we do not finish his surgical sequence before he is released, we will have to foot the bill for him as a free person anyway in my opinion.”

After the statement above was read to the jury from Fitz-Henley’s deposition, the Department objected, and the jury was removed from the courtroom. The attorneys discussed the situation with the court, and the Department moved for a mistrial based on the testimony. The trial court overruled the motion, but issued a curative instruction to the jury directing them to disregard the testimony, and the remainder of Fitz-Henley’s deposition (approximately 60 pages of testimony) was then read to the jury.

Here, although the evidence was prejudicial, the nature and context of the statement — mere reference to an e-mail discussion, which included the phrase “in my opinion,” from a nontestifying physician presented as an exhibit to another physician’s deposition that was subsequently read to the jury — was insufficient to fatally infect the verdict and demand a mistrial.

3. The Department contends that the trial court erred by overruling certain objections to testimony presented at trial. We disagree.

“A trial court’s rulings with respect to evidence relevancy will not be reversed absent abuse of discretion. Moreover, if the evidence offered by a party is of doubtful relevancy, it should nevertheless be admitted and its weight left to the jury.” If “irrelevant evidence is admitted over timely objection, it affords no cause for a new trial, unless the nature of the evidence is such as reasonably to prejudice the rights of the objecting party.”

(a) First, the Department contends that the trial court erred by overruling its objection to Couch’s testimony regarding whether the Department promised to pay for his future medical care. We disagree.

The citations to the record provided by the Department span a number of pages that include several objections to Couch’s testimony and the tender of documentary evidence to which the Department objected. Couch’s testimony addressed whether he asked to receive treatment while he was in prison, and whether he ever refused offered treatment while he was in prison. Couch did not testify that anyone at the Department promised to pay for his treatment, but that a nurse named Mike Patterson explained to Couch that he could schedule surgery after his release. The trial court sustained the Department’s objection to this testimony. The trial court did allow into evidence a document entitled “Georgia Department of Corrections Refusal of Treatment Against Medical Advice,” which stated that rather than receive treatment at the Medical College of Georgia, an appointment for further treatment would be scheduled for Couch at another location subsequent to his release; the document did not include any specific language binding the Department to pay for any treatment. Because the issue of whether Couch refused offered medical service while he was in prison was relevant to the issues of the amount of damages and the extent of any problems related to delayed treatment, the trial court did not abuse its discretion by allowing the evidence at trial.

(b) Next, the Department contends that the trial court erred by overruling its objections to Couch’s testimony that he wanted treatment while in prison because he had no money and no insurance, and the court’s error was compounded when Couch’s counsel argued at closing that the Department intentionally delayed scheduling his treatment. As previously stated, this testimony was relevant to establish that Couch did not refuse treatment while in prison. Thus, we discern no abuse of discretion on the part of the trial court by overruling the Department’s objection to the testimony.

To the extent that Couch’s attorney’s closing argument included argument of these facts, they were supported by the evidence at trial and were made as part of the attorney’s larger argument that Couch did not refuse treatment while he was incarcerated, contrary to the refusal-of-treatment form.

(c) The Department also contends that the trial court erred by overruling its objections to the admission of improper character evidence with regard to Officer Jeffrey Woolridge, who was supervising Couch and the other inmates on the painting detail on the day in question. As an initial matter, we note that the trial court sustained the Department’s objection to the admission of evidence of a domestic incident in which Woolridge may have been involved. With regard to impeachment of Woolridge regarding whether he had received previous reprimands at work, we discern no abuse of discretion. Woolridge contended at trial that he instructed the inmates, including Couch, to stay out of the kitchen, and thus, his diligence about observing and supervising inmates was relevant to the issues of the Department’s duty to Couch while he was in the area at the time of his fall, and Couch’s knowledge of the danger of the area in question. Accordingly, we discern no abuse of discretion on the part of the trial court by overruling the Department’s objections to Couch’s attempts to impeach Woolridge’s credibility.

4. Finally, the Department argues that the trial court erred by refusing to give a jury charge on the issue of voluntary departure. We disagree.

At issue, is the following requested charge:

It is incumbent upon the plaintiff to use the degree of care necessary under the circumstances to avoid injury to himself. The reasonable selection of a route of travel is part of a person’s duty to exercise ordinary care for his own safety. Where a person voluntarily departs from the route designated and maintained by the owner for the person’s safety and convenience, the degree of caution owed by the person to exercise ordinary care for his own safety is heightened by any increased risk that results from his choice of path.

“In order for a trial court’s refusal to give a party’s written requested charge to be error, the request must be adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge. ... In reviewing an allegedly erroneous jury instruction, we apply the plain legal error standard of review.” Moreover, “[i]t is axiomatic that a jury charge need not be given in the exact language requested if the charge as given clearly covers the circumstances of the case.”

Decided November 15, 2011.

Samuel S. Olens, Attorney General, Robert L. Bunner, Assistant Attorney General, for appellant.

Farah & Farah, Kevin Elwell, Thomas G. Tidwell, for appellee.

Here, the Department has failed to establish harm as a result of the trial court’s refusal to instruct the jury on the charge as stated above.

Even though a request to charge may be apt, correct and pertinent, it is not necessarily error to fail to charge it. We must look to the charge as a whole to determine whether the court substantially covered the principles embodied therein or whether it was sufficiently or substantially covered by the general charge.

Viewed in this light, the trial court correctly instructed the jury on the issues embodied in the Department’s requested charge through the court’s charges regarding the definition of negligence and ordinary care, duties to invitees and licensees, implied invitation, scope of invitation, static defects, avoidance of the consequences, contributory negligence, and assumption of the risk. Accordingly, this enumeration is without merit.

5. Couch’s motions to strike portions of the Department’s reply brief are denied as moot.

Judgment affirmed.

Miller, P. J., and Ellington, J., concur.

       (Punctuation omitted.) Freese II v. Moses, 301 Ga. App. 793, 794 (689 SE2d 98) (2009).

       (Punctuation omitted.) Ramcke v. Ga. Power Co., 306 Ga. App. 736 (703 SE2d 13) (2010).

       (Punctuation and footnotes omitted.) Howard v. Gram Corp., 268 Ga. App. 466, 467 (602 SE2d 241) (2004).

       See Shaw v. McDonald’s Restaurants of Ga., 191 Ga. App. 583, 584 (1) (382 SE2d 632) (1989).

       Cf. Freese II, 301 Ga. App. at 795 (“In the absence of a verdict form requiring the jury to specify on what theory it found the defendants liable, the method by which a jury reaches a particular verdict is not a matter of which this Court can take judicial cognizance.”) (punctuation omitted).

       (Citations and punctuation omitted.) Nosiri v. Helm, 301 Ga. App. 380, 381 (1) (687 SE2d 635) (2009).

       See id.

       (Punctuation omitted.) Id.

       268 Ga. 735, 739 (493 SE2d 403) (1997).

       (Citations and punctuation omitted.) Nosiri, 301 Ga. App. at 382 (1).

       Id. at 382 (2).

       (Citations and punctuation omitted.) Baker v. Harcon, Inc., 303 Ga. App. 749, 754 (b) (694 SE2d 673) (2010).

       See, e.g., The Augusta Country Club v. Blake, 280 Ga. App. 650, 656 (1) (c) (634 SE2d 812) (2006) (affirming denial of directed verdict against defendant related to negligence for failure to remove magnolia seed pods and leaves from the grounds, leading to plaintiffs fall).

       See Sangster v. Dujinski, 264 Ga. App. 213, 216 (590 SE2d 202) (2003).

       (Citation and punctuation omitted.) Id. at 217.

       See Travelers Indem. Co. v. Wilkes County, 102 Ga. App. 362, 366 (2) (116 SE2d 314) (1966) (cautionary instruction and implied rebuke were sufficient to cure the harm, and thus, denial of the motion for mistrial was not an abuse of discretion). Compare Sangster, 264 Ga. App. at 217 (trial court neither rebuked counsel nor issued a curative instruction).

       (Punctuation omitted.) Kilday v. Kennestone Physicians Center, 296 Ga. App. 818, 819-820 (1) (676 SE2d 271) (2009).

       (Punctuation omitted.) Id. at 820 (1).

       See id. at 820 (1) (a).

        See Davenport v. Yawn, 297 Ga. App. 685, 687 (1) (678 SE2d 148) (2009) (“Whether to permit certain arguments by counsel during opening and closing statements is left to the trial court’s discretion and unless some positive injury can be shown by the remarks of counsel, the discretion of the trial judge will not be controlled. While counsel should not go outside the facts appearing in the case and the inferences to be deduced therefrom, he may upon the facts in the record, and upon the deductions he may choose to draw therefrom, make almost any form of argument he desires.”) (citation and punctuation omitted).

       See Smith v. State, 190 Ga. App. 6, 7-8 (2) (378 SE2d 349) (1989) (“Generally, a party may show anything which in the slightest degree affects the credit of an opposing witness. A witness may be impeached on a collateral issue [that] is indirectly material to the issue in the case. Evidence tendered for impeachment purposes need not be of the kind or quality required for proving the facts.”) (citations and punctuation omitted).

       (Punctuation omitted.) Thompson v. Princell, 304 Ga. App. 256 (696 SE2d 91) (2010).

       (Citation and punctuation omitted.) Id. at 261 (b).

       See Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 865 (4) (a) (686 SE2d 455) (2009).


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A1104.
    ALVAREZ v. THE STATE.
    (718 SE2d 884)
   Doyle, Judge.

Juan Alvarez, Jr., was convicted of one count of felony obstruction of an officer and two counts of the lesser included offense of misdemeanor obstruction of an officer. Alvarez appeals following the denial of his motion for new trial, arguing that the trial court erred by admitting hearsay evidence and denying his motion for a directed verdict on that ground. He also challenges the sufficiency of the evidence and contends that the trial court’s jury charge was erroneous. We affirm, for reasons that follow.

Construed in favor of the verdict, the evidence shows that Sergeant Shane Presgraves was on patrol during the early morning hours of November 10, 2007, when he received a call from dispatch about a “suspicious,” “bleeding” person on Baker Road in Hall County. Presgraves proceeded to the area, where he found Juan Manual Sosa walking along Baker Road. Sosa smelled of alcohol, he was bleeding from his nose and mouth, and had a small laceration above his eye. Sosa told the officer that he had been “beaten up” at his home at 3234 Baker Road. Although Sosa did not identify the man, he told Presgraves that his assailant had stated that “the police was [sic] no problem” and demonstrated that “he had a gun for the police.”

Presgraves and at least four additional officers proceeded to Sosa’s residence, and Presgraves and Deputy Chad Suttles knocked on the front door of the trailer. At the same time, Officer Jeremy Orme, who was armed with a shotgun loaded with bean bags, approached the right side of the trailer and observed approximately 50 to 100 plastic cups and beer bottles in the yard. Orme also saw several people standing “towards the back of the trailer” and several more “[coming] out from the back of house”; at least four to six people began quickly walking toward the woods once they spotted the police.

Orme saw an outbuilding behind the trailer, and he began walking toward the building while racking his shotgun. As Orme rounded a corner of the outbuilding, he observed Alvarez standing face-first against the building. Alvarez was wearing a large, dark, camouflage jacket with a hood over his head. Orme could not see Alvarez’s hands, so he immediately ordered him to display them and to turn around and walk toward Orme. After Orme repeated the commands at least nine times, Alvarez finally began walking toward the officer, but then turned around and started walking toward the trailer with his back toward Orme, still obscuring his hands.

Meanwhile, Presgraves, who had briefly spoken with a woman who answered the door, had descended from the porch and was proceeding to the rear of the trailer when he heard Orme repeatedly yelling at Alvarez to show his hands. Presgraves also commanded Alvarez to show his hands, and Alvarez failed to comply. Because he was concerned about his safety and the possibility that Alvarez might have a weapon, Presgraves retrieved his taser from his belt. After Alvarez swung at him with his fist, Presgraves deployed the taser, and the prongs hit Alvarez’s jacket. Because the initial shot seemed to have no effect on Alvarez, Presgraves “dry stun[ned]” him by making direct contact between Alvarez and the taser prongs. Again, the taser appeared to have no effect, and Alvarez continued swinging his fists at Presgraves, punching him in the chin and knocking the taser out of the officer’s hand.

Orme, Presgraves, and Suttles repeatedly ordered Alvarez to stop resisting and place his hands behind his back, but Alvarez refused. Presgraves and Suttles together attempted to get Alvarez’s hands behind his back and handcuff him, but Alvarez continued to struggle, and they were unsuccessful. After advising the other two officers to move away from Alvarez, Orme told Alvarez that he was going to shoot him, and Alvarez charged directly toward him. Orme then shot Alvarez with a bean bag round. Alvarez stopped momentarily, but then he “went into a wild rage and went after Sergeant Presgraves and Deputy Suttles . . . [and it] just turned into a brawl at that point.” The officers continually yelled at Alvarez and struck him in his upper arms in an attempt to temporarily incapacitate him, but he continued to resist. After Alvarez tossed Presgraves aside, Orme handed Presgraves the shotgun and joined Suttles and a third officer in trying to subdue Alvarez, who was head-butting, kicking, and punching the officers. After Alvarez managed to break free and stand, Presgraves again commanded him to “get back,” Alvarez charged toward the officer, and Presgraves fired a second bean bag round into his chest, finally subduing him enough to handcuff him. As the officers walked Alvarez to a patrol car, he tried to bite, head-butt, trip, and spit on them, and one of the officers sprayed him with pepper spray. Once they placed him in the car, the officers had to restrain Alvarez’s feet to stop him from kicking the door.

Alvarez was charged with felony obstruction of Orme, Pres-graves, and Suttles, for a total of three counts. Before the trial began, the State advised the trial court that it had been unable to locate Sosa and that it intended to have the officers testify about Sosa’s statements to them. Alvarez objected, arguing that the officers’ testimony was hearsay and that its admission violated his confrontation rights under Crawford v. Washington. The trial court initially ruled that it would not allow the State “to tender [Sosa’s testimony] through the officers.”

At trial, Presgraves testified that he encountered Sosa, who was bleeding and emitting an odor of alcohol, had a conversation with him, and then proceeded to Sosa’s residence. During Presgraves’s testimony, the prosecutor asked him whether he was concerned that someone might have a gun. Defense counsel objected on the basis of hearsay, and the trial court overruled the objection. Presgraves then testified that he was at the residence “to investigate a crime” and that he wanted to see Alvarez’s hands because of a specific concern regarding the possibility of a firearm. Thereafter, outside the presence of the jury, the State proffered Presgraves’s testimony regarding his conversation with Sosa. After considering the proffer, the trial court ruled: “The State’s witnesses cannot state to the jury what Mr. Sosa said to the witnesses. That’s the extent of the [cjourt’s ruling. The State’s witnesses cannot tell the jury that Mr. Sosa said this to me. And that’s the extent of the ruling.” Thereafter, Orme testified several times that he had a specific concern about somebody possessing a weapon at the residence; he did not testify about what any other person told him. Suttles also testified that he had “a concern that someone on the property may have a firearm and would be willing to use it against law enforcement.”

At the conclusion of the trial, Alvarez was found guilty of felony obstruction of Presgraves and misdemeanor obstruction of Orme and Suttles, and he was sentenced to serve 12 months. This appeal followed.

1. Alvarez argues that the trial court erred by admitting the “implicit hearsay” testimony of the police officers regarding Sosa’s statements, resulting in the erroneous denial of Alvarez’s subsequent motion for a directed verdict. We disagree.

The testimony to which Alvarez objects did not constitute inadmissible hearsay. “[A]n out-of-court statement is considered hearsay only if it is offered to prove the truth of what is contained therein.” Pursuant to OCGA § 24-3-2, “[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” “Although our Supreme Court has ruled that, only in rare instances will the conduct of an investigating officer need to be explained, this is such a case.”

Here, the testimony at issue was offered not to prove that Sosa had been beaten up by a man who indicated that he had a weapon, but instead to establish a basis for the officers’ actions. “In establishing that [Alvarez] obstructed the officers, the State was required to prove that they were acting in the lawful discharge of their official duties at the time of the obstruction.” Thus, the State needed the officers to testify about their encounter with Sosa and their belief that a person at his residence was armed with a gun. “Accordingly, the testimony was admissible as original evidence to explain that the officers were lawfully discharging their official duties.” This enumeration is without merit.

2. Alvarez contends that the evidence was insufficient to support the verdict because the State failed to prove that Orme was in the lawful discharge of his official duties.

Pursuant to OCGA § 16-10-24, an essential element of proof of the offense of obstruction of an officer is that the obstruction occurred while the officer was “in the lawful discharge of his official duties.” Here, the jury heard evidence that the police responded to the home to investigate a crime after speaking to a bloody, injured man and that the police had reason to suspect that someone at the scene was armed with a gun. Alvarez does not contend that the police did not have probable cause to respond to the scene. Instead, he argues that Orme did not have probable cause to enter the back yard of the residence.

It is correct that “even if the officers had probable cause to investigate a crime, the Fourth Amendment prohibited them from entering [a suspect’s] home or its curtilage without a warrant absent consent or a showing of exigent circumstances.” In this case, as Orme pulled into the driveway of the residence, he observed several people standing toward the rear of the trailer, and he saw several more emerging from behind the home. Orme testified that he had reason to believe that someone at the residence was armed with a gun, and he approached the side of the trailer to make sure that the officers approaching the front door were safe and did not get shot. Under these facts, we conclude that exigent circumstances justified Orme’s entry into the back yard.

Alvarez also contends that the officers had “no probable cause as to [him specifically].” This argument is unpersuasive.

An officer may be engaged in the lawful discharge of his official duties even if he does not have probable cause to arrest an individual. Thus, for example, an individual who obstructs an officer during the investigation of a crime may be guilty of obstruction notwithstanding the lack of probable cause to arrest that individual. Further, all law enforcement officers have the general duty to enforce the law and maintain the peace.

As we already concluded, Orme’s entry into the back yard was not illegal. Once he saw Alvarez, who was standing face-first against the outbuilding with his hands concealed in a baggy jacket, given Orme’s concerns about a possible armed individual at the scene, the officer was authorized to instruct Alvarez to display his hands and to stop advancing toward him. Alvarez’s failure to comply and subsequent physical attack on the officers supported his obstruction convictions.

3. Alvarez also argues that the trial court erred by failing to instruct the jury that an essential element of the charge of obstruction is that the officer was lawfully discharging his official duties at the time of the obstructing behavior and instead improperly charged that the State was required to prove that the arrest for obstruction was lawful. In other words, he argues that “the jury was told that the officers only had to be lawfully performing their duties when they arrested [him] for obstruction, not that they had to be lawfully performing their duties before the acts of obstruction occurred.”

OCGA § 17-8-58 (a), enacted effective July 1, 2007, controls the preservation of objections to jury charges. Under this statute, a criminal defendant is required to inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate. Subsection (b) precludes appellate review where there is a failure to object in accordance with subsection (a), but this subsection also provides for review for plain error which affects substantial rights.

Because Alvarez failed to object to the charges at trial on this basis, we will review his claim for “substantial error in the charge which was harmful as a matter of law.”

The trial court charged the jury as follows:

A person commits the offense of obstruction of an officer when that person knowingly and willfully resists and opposes any law enforcement officer in the lawful discharge of that law enforcement officer’s official duties by offering to do violence or doing violence to the person of the law enforcement officer.

The trial court further instructed:

The standard for determining the lawfulness of the arrest of the accused for the offense of obstruction of an officer and thus whether a law enforcement officer was lawfully discharging his duties such that the conduct of the accused would constitute obstruction of a law enforcement officer is whether you, the jury, find evidence that a reasonable suspicion or an articulable suspicion existed to stop or detain the accused who is charged with obstruction of an officer.

Decided November 15, 2011.

Kristin I. Patten, for appellant.

Lee Darragh, District Attorney, Kathleen J. Devine, Assistant District Attorney, for appellee.

The trial court further instructed the jury regarding the basis for a reasonable or articulable suspicion and investigative detentions, and charged that Alvarez had a legal right to resist the arrest for obstruction if the jury found that the State “failed to prove by evidence beyond a reasonable doubt that the law enforcement officers in this case were in the lawful discharge of their duties.”

“ Tt is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.’ ” Viewing the charge as a whole, along with the pattern jury charges and the applicable Code section, we find no plain error.

Judgment affirmed.

Miller, P J., and Ellington, J., concur.

       OCGA § 16-10-24 (b).

       OCGA § 16-10-24 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

         Other officers were simultaneously approaching the left side of the trailer.

       541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004).

       Defense counsel objected each time the officers testified that they had reason to believe that a person at the location had a gun.

        Greene v. State, 266 Ga. 439, 448 (25) (469 SE2d 129) (1996), overruled on other grounds, Greene v. Georgia, 519 U. S. 145 (117 SC 578, 136 LE2d 507) (1996).

       (Punctuation and footnote omitted.) Penland v. State, 258 Ga. App. 659, 661 (3) (574 SE2d 880) (2002).

       Id.

       Id. See also Johnson v. State, 293 Ga. App. 32, 35 (2) (666 SE2d 452) (2008) (“patrol officer’s testimony about the briefing he received before going on duty, during which he received the description of the armed robbery suspect and the stolen pickup truck used in the armed robbery . . . [was! admissible to explain the officer’s reason for investigating upon spotting the pickup truck”) (citations and punctuation omitted); Graham v. State, 269 Ga. App. 590, 594 (3) (604 SE2d 651) (2004) (officer’s testimony regarding statements made to him by a witness was admissible because it “was not offered to prove the truth of the matter asserted . . . but to show the officer’s rationale for [his actions]”); Morrow v. State, 257 Ga. App. 707, 708 (2) (572 SE2d 58) (2002) (officer’s testimony about information he received from police dispatcher was admissible to explain the officer’s reason for investigating the defendant).

       At trial, Alvarez also objected to the officers’ testimony on the basis that it violated his constitutional right to confront and cross-examine Sosa. To the extent that he raises this argument on appeal, it is rejected. See Little v. State, 280 Ga. App. 60, 64 (2) (633 SE2d 403) (2006) (“The Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted. Any out-of-court statements alluded to by the officer at this juncture served the purpose of explaining how certain events came to pass or why the officers took the actions they did. Because the statements were not offered to establish the truth of the matter asserted, the Confrontation Clause does not apply.”) (citation and punctuation omitted); Jennings v. State, 285 Ga. App. 774, 776 (1) (648 SE2d 105) (2007) (physical precedent only).

        Kirsche v. State, 271 Ga. App. 729, 731 (611 SE2d 64) (2005).

       See Smith v. State, 308 Ga. App. 280, 281 (707 SE2d 175) (2011); Jackson v. State, 280 Ga. App. 716, 719 (1) (634 SE2d 846) (2006); Owens v. State, 236 Ga. App. 534, 535-536 (512 SE2d 394) (1999). Compare Kirsche, 271 Ga. App. at 731-732 (reversing denial of motion to suppress because officers were not authorized to enter home’s curtilage).

       (Punctuation and footnote omitted.) West v. State, 296 Ga. App. 58, 60-61 (2) (673 SE2d 558) (2009).

       See Santos v. State, 306 Ga. App. 772, 774-775 (1) (703 SE2d 140) (2010).

       See White v. State, 310 Ga. App. 386, 390 (2) (b) (714 SE2d 31) (2011); Santos, 306 Ga. App. at 776 (2); Edwards v. State, 253 Ga. App. 837, 840 (c) (560 SE2d 735) (2002).

       (Punctuation and footnotes omitted.) Fairwell v. State, 311 Ga. App. 834, 838 (2) (717 SE2d 332) (2011).

       (Punctuation omitted.) Walker v. State, 305 Ga. App. 607, 616 (7) (699 SE2d 902) (2010).

       This instruction closely tracks the language of both the Code section and the pattern jury charge. See OCGA § 16-10-24 (b) (“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 or legally authorized person is guilty of a felony. . . .’’); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 2.44.10 (“A person commits the offense of obstruction of an officer when that person knowingly and wilfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of official duties by offering to do or doing violence to the person of the officer or legally authorized person.”).

        Ow v. State, 255 Ga. App. 98, 103 (2) (564 SE2d 512) (2002).

       See Edwards v. State, 308 Ga. App. 569, 571-572 (2) (707 SE2d 917) (2011); Curtis v. State, 285 Ga. App. 298, 300-301 (1) (a) (645 SE2d 705) (2007).


author: Adams, Judge.

text:
    A11A1231.
    ROWELL v. THE STATE.
    (718 SE2d 890)
   Adams, Judge.

Laura Lee Rowell appeals following her conviction on one count of driving under the influence and one count of weaving/failure to maintain lane. Rowell argues on appeal that the trial court erred in denying her motion to suppress and in overruling her objection to the introduction of the numerical results of her alco-sensor test.

We review a trial court’s ruling on a motion to suppress evidence using the “any evidence” standard, “which means that we sustain all of the trial court’s findings of fact that are supported by any evidence.” Thus, “we construe all evidence presented in favor of the trial court’s findings and judgment, accepting the trial court’s decision unless it is clearly erroneous.

(Punctuation and footnotes omitted.) Jupiter v. State, 308 Ga. App. 386, 387 (1) (707 SE2d 592) (2011).

So viewed, the evidence at the hearing showed that on November 15, 2007, Trooper John Hardage of the Georgia State Patrol was sitting at an intersection in Houston County when he observed Rowell’s Ford van traveling at what appeared to be a speed greater than the posted speed limit. He watched the van as it approached a red light at another intersection, slammed on its brakes and skidded past the stop bar. When the van came to a stop it was mostly in the left-hand lane, but partially in the right-hand lane. At that point, Hardage made a left turn and got behind Rowell’s van and followed her through the intersection when the light turned green. The trooper activated his blue lights and initiated a traffic stop based upon his concern about Rowell’s reaction time at the red light. His concern arose from observing her slamming on her brakes and skidding across the stop bar “basically into the intersection” and over into the next lane. He felt that she was a less safe driver.

Hardage testified that he approached the van and asked Rowell to step out. She could not find her driver’s license in response to his request, but she gave him her name and date of birth. While he was talking to Rowell, Hardage noticed an odor of alcoholic beverage. He also observed that her eyes were “somewhat red” and she was a little unsteady while she was standing between her vehicle and the police car. Her speech was “just a little slurred.” Hardage asked Rowell if she had had anything to drink, but she said that she had not. Hardage then administered several field sobriety tests. The first test he performed was the horizontal gaze nystagmus (HGN) evaluation, and he testified that he observed six out of six clues in performing that test. Hardage next asked Rowell to perform the one-leg-stand test, and he observed that she was swaying and she could not hold her foot up for more than about three seconds without having to put it down. Rowell attempted the test on three occasions and could not perform it. Hardage did not administer the walk-and-turn test due to wind and limited space, but he did administer the alco-sensor test. Rowell tested positive for alcohol. Hardage further testified, over a defense objection, that the numerical reading on the alco-sensor was 0.208.

Based upon this information, Hardage formed the opinion that Rowell was a less safe driver under the influence of alcohol. Hardage placed Rowell under arrest for DUI and failure to maintain lane, then handcuffed her and put her in the back of the patrol car. He testified that he read her the implied consent warning after he placed her under arrest.

The trial court issued a letter order denying the motion to suppress after reviewing the evidence from the hearing, the video of the traffic stop, the audio transcript of the administrative license suspension (“ALS”) hearing, counsel’s argument and case law. The denial of that order was reaffirmed at trial.

1. Rowell first asserts that the trial court erred in denying her motion to suppress the state’s chemical test, arguing that Hardage lacked probable cause to arrest her for DUI. In support of her argument, Rowell argues that inconsistencies exist among Hardage’s testimony at the motion hearing, his trial testimony and the videotape of her traffic stop as to when he first detected the odor of alcohol, whether Rowell’s speech was slurred, her red eyes, his administration of the field sobriety tests and whether Rowell was unsteady on her feet when she walked back to her car.

But we cannot reach this issue because the record before us is incomplete, as it contains no transcript of the ALS hearing, upon which the trial court specifically relied in denying the motion to suppress. It appears that at the motion hearing, Rowell’s counsel proffered Hardage’s “sworn testimony” from that ALS hearing, in some form other than a transcript, which he had marked as “D2,” but no Exhibit D2 was introduced into evidence. It further appears that Rowell’s counsel attempted to introduce a copy of the transcript of the ALS hearing at trial, after marking it as Exhibit “Dl,” but the trial court excluded the evidence in response to the State’s objection. The trial court told Rowell’s counsel that he thought he could supplement the record with that transcript, but the appellate record reflects no attempt by Rowell to do so.

Nevertheless, it is apparent that the trial court relied upon a transcript of that evidence at Rowell’s request following the motion hearing. Consequently, the record on appeal does not constitute a complete record of the evidence available to the trial court in ruling on the motion to suppress. Rowell, as appellant, had the burden of ensuring that the record was complete. See Williams v. State, 287 Ga. App. 361, 362 (2) (651 SE2d 768) (2007).

An appellant has the burden of proving trial court error by the appellate record, and must compile a complete record of what transpired in the trial court. Otherwise, there is not sufficient information for an appellate court’s review and the trial court ruling enumerated as error must be upheld. When a portion of the evidence bearing upon the issues raised by the enumerations of error is not brought up in the appellate record so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. [Cit.]

(Citation and punctuation omitted.) Crawford v. State, 288 Ga. 425, 427 (2) (704 SE2d 772) (2011). See also State v. Stelzenmuller, 285 Ga. App. 348, 351 (1) (646 SE2d 316) (2007) (because trial court excluded the administrative hearing transcript from evidence, this transcript cannot be used to consider trial court’s credibility determination). Although on appeal Rowell relies only upon testimony and evidence appearing in the appellate record to support her arguments, this Court has an incomplete picture of the evidence available to the trial court when it decided the motion. “[Bjecause appellant has failed to compile a record that demonstrates all that transpired in the trial court with regard to his suppression motion, we must presume that the evidence before the court supported its decision to deny the motion.” Crawford, 288 Ga. at 427 (2). Thus, we must assume that the trial court properly resolved any inconsistencies between Hardage’s testimony at the various hearings and the videotape.

2. Nevertheless, Rowell also raises certain issues based primarily upon the videotape of the traffic stop that can be resolved based upon the existing appellate record.

(a) Rowell takes issue with Hardage’s administration of the HGN and the one-leg-stand tests as shown on the videotape of the traffic stop. We find no error. With regard to the HGN test, Rowell asserts that “[t]he distance the stimuli is from the face and height above the eyes, the timing of each pass of each eye by the stimulus, clues of ‘equal tracking’ being looked for by the Officer, instead of the three recognized clues, all indicate a flawed and butchered performance not worthy of belief.” But “[ajbsent a fundamental error, such as one affecting the subject’s qualification for the HGN test, evidence of the possibility of error goes only to the weight of the test results, not to their admissibility.” (Punctuation and footnote omitted.) Parker v. State, 307 Ga. App. 61, 64 (2) (704 SE2d 438) (2010). See also Duncan v. State, 305 Ga. App. 268, 272 (2) (a) (699 SE2d 341) (2010); State v. Tousley, 271 Ga. App. 874, 881 (1) (c) (611 SE2d 139) (2005). Rowell’s conclusory argument regarding the HGN test does not support the exclusion of the test results. She makes no attempt to show that the flaws she alleges in the administration of the HGN test go to anything other than the weight to be accorded the results. Similarly, Rowell’s arguments concerning the proper administration of the one-leg-stand test when she was in high heels goes to the weight of the evidence and not to its admissibility. See Stewart v. State, 280 Ga. App. 366, 368-369 (2) (634 SE2d 141) (2006). Thus, the trial court was entitled to consider the results of these tests in ruling upon the motion to suppress.

(b) Rowell also raises several arguments regarding the administration of the alco-sensor test, asserting that she was improperly coerced into taking the test without the benefit of a Miranda warning.

Alco-sensor and other field sobriety tests given to a person under custodial arrest are inadmissible where administration of the tests has not been preceded by a Miranda warning. Although a motorist is deprived of his freedom of action during a traffic stop, such a deprivation does not always trigger the rights set forth in Miranda. Instead, the test for determining whether a person is “in custody” at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.

(Footnotes omitted.) State v. Padidham, 310 Ga. App. 839, 840-841 (1) (714 SE2d 657) (2011). Moreover, although “under Georgia law, an investigating officer is not required to advise a suspect that his performance of field sobriety tests is voluntary,” an officer cannot improperly compel a suspect into submitting to the tests. See generally Aldrich v. State, 220 Ga. 132, 134 (137 SE2d 463) (1964). This Court, in fact, specifically looks for an absence of any threat of criminal sanction or any show of force in determining whether field sobriety test evidence is admissible. See Montgomery v. State, 174 Ga. App. 95, 96 (1) (329 SE2d 166) (1985) (test results admissible where defendant not threatened with criminal sanctions for his failure to perform the tests, was not physically forced to do tests, and no showing of force tantamount to actual use of force, and defendant did not refuse to perform tests). See also Clark v. State, 289 Ga. App. 884, 885-886 (2) (658 SE2d 372) (2008) (same).

Here, Rowell argues that Hardage’s actions in administering the test constituted improper coercion and/or transformed her detention into a custodial situation for purposes of Miranda. Hardage administered the alco-sensor test after he determined that Rowell had failed the HGN and the one-leg-stand tests. The videotape reflects that as Rowell blew into the alco-sensor device, Hardage urged her repeatedly to “blow, blow, blow.” But her initial attempts failed to achieve a useable reading, and Hardage told her on two occasions that he would take her to jail if she did not properly blow into the device. At trial, Hardage testified that Rowell was not performing the test as instructed, and he was intending to inform her that if she did not perform it correctly, he would take her to jail to perform the state-administered chemical test.

From our review of the videotape, we conclude the trial court could have properly interpreted Hardage’s repeated commands to “blow, blow, blow” as instructing her as to the length of her breath and not as an attempt to force her to submit to the test. But Hardage’s statements that he would take Rowell to jail if she did not properly perform the test are more troubling.

In Leiske v. State, 255 Ga. App. 615 (565 SE2d 925) (2002), the defendant argued that the results of his state-administered chemical test were not admissible because his consent was not voluntary based upon the officer’s indication that he would be jailed if he did not submit to the tests. Although Leiske did not contest the results of his field sobriety tests, the opinion is instructive. At the hearing on Leiske’s motion to suppress, his counsel attempted to elicit testimony from the arresting officer that he told Leiske he would take him to jail if he did not perform the field sobriety tests. The arresting officer testified, however, that he told Leiske that if he refused the field sobriety tests, he would be forced to read him the implied consent notice, and if he refused that, his license would be suspended, he would be arrested and he would be taken to jail. The officer explained that he simply gave Leiske the options provided him by law. This Court determined that “[t]his colloquy does not establish that [the defendant] was ‘coerced’ into agreeing to any test,” presumably including the field sobriety tests. (Citation omitted; emphasis supplied.) Id. at 616-617 (2). Although Hardage may have similarly intended to inform Rowell of her options under the law, that is not what he did. Rather, he simply told her that he would take her to jail if she did not perform the test properly. Thus it is possible to interpret Hardage’s statements as a threat of criminal sanction for failing to properly perform the test.

Nevertheless, we do not believe that Hardage was required to read Rowell a Miranda warning under the circumstances of this case. This Court has previously held that where a police officer indicates that a defendant is going to jail regardless of his performance on the field sobriety tests, an officer must read the Miranda warning. See Hale v. State, 310 Ga. App. 363, 366 (1) (714 SE2d 19) (2011) (defendant in custody for purposes of Miranda when officer told him he was going to jail before administering alco-sensor test); State v. Norris, 281 Ga. App. 193, 196 (635 SE2d 810) (2006) (defendant’s detention ripened into an arrest when officer told him to turn around and place his hands behind his back, requiring a Miranda warning before administration of alco-sensor test); Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998) (field sobriety test results excluded in absence of Miranda warning where defendant informed that she was going to jail whether or not she submitted to the tests). But in this case Hardage gave Rowell an option of sorts: perform the test properly or go to jail. Thus a reasonable person in Rowell’s position would have believed that she was not yet under arrest and that her detention still could be only temporary Moreover, Hardage did not make these statements until Rowell had already consented to and begun performing the test. There was no indication that her initial consent was made under any threat of force or criminal sanction or that she wanted to refuse the test. It was only when she failed to achieve a useable reading that Hardage indicated that he would take her to jail if she did not perform the test correctly. Under these circumstances, no Miranda warning was required and Hardage’s statements cannot be interpreted as coercing her into submitting to the test.

But even if Hardage’s statements could be construed as improperly coercing Rowell into continuing to perform the test, we find that the admission of the test results was harmless error because sufficient evidence existed to establish probable cause for Rowell’s arrest without that evidence. The officer had already observed her abrupt stop at the traffic light, which led her to cross the traffic bar and veer into another lane. After the traffic stop, he smelled the odor of alcohol and observed that she was unsteady on her feet, that her eyes were red and that her speech was somewhat slurred. These factors along with her performance on the two other field sobriety tests were sufficient to give Hardage “knowledge or reasonably trustworthy information sufficient to authorize a prudent person to believe that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.” (Citation omitted.) Cash v. State, 299 Ga. App. 303, 305 (2) (682 SE2d 607) (2009). Thus, under the totality of the circumstances, the trial court was authorized to conclude that the officer had probable cause to arrest Rowell for driving under the influence of alcohol. Id.; Cann-Hanson v. State, 223 Ga. App. 690, 691 (1) (478 SE2d 460) (1996) (even in the absence of the field sobriety tests, the officer’s observation of bloodshot, watery eyes and odor of alcohol was sufficient to show probable cause to arrest appellant for driving under the influence). Cf. Trotter v. State, 256 Ga. App. 330, 332 (2) (568 SE2d 571) (2002) (improperly admitted breath test results harmless where evidence merely cumulative of other evidence of driver’s less safe state).

3. Rowell next asserts that the result of the state’s chemical test should have been excluded because although Hardage testified that he read her the implied consent notice, the videotape does not reflect that he, in fact, read the notice to her.

OCGA § 40-6-392 (a) (4) provides, in part, that the arresting officer at the time of arrest shall advise the person arrested of his rights to a chemical test or tests according to this Code section. . . . [This statute requires] exclusion of the results of a State-administered chemical test where the notice was not given at the time of arrest, or at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.

Thomas v. State, 294 Ga. App. 108, 111 (2) (668 SE2d 540) (2008). But Rowell failed to raise this argument below. In fact, the prosecutor’s first question for Hardage after the videotape was played at trial referenced the reading of the implied consent notice and Rowell’s consent to the state test, with no objection from her counsel. Thus, Rowell waived this issue for appeal. See Black v. State, 248 Ga. App. 626 (1) (548 SE2d 9) (2001).

Even if the issue were properly preserved, however, we would find no error. Hardage testified that he read Rowell the implied consent notice. Although the videotape in the appellate record does not reflect the reading of the notice, the sound quality on portions of the tape is poor, often cutting in and out. The videotape contains at least two gaps in sound after Rowell’s arrest when both Hardage and Rowell are offscreen. These gaps are of sufficient duration to have allowed Hardage to read her the implied consent notice. Moreover, the end of the tape captured a portion of conversation in which Rowell asks what will happen next, and Hardage replies that it will depend upon the results of later testing, which indicates that he had already informed her of the test. Thus, the evidence supported a finding that Hardage read Rowell the implied consent warning.

4. Rowell also contends that the trial court erred in overruling her objection to Hardage’s testimony regarding the numerical reading shown on the alco-sensor.

Decided November 15, 2011.

Gregory W. Holt, for appellant.

Alan R. Tawse, Jr., Solicitor-General, Arthur J. Creque, Assistant Solicitor-General, for appellee.

At the hearing on the motion to suppress, the trial court allowed Hardage to testify over Rowell’s objection to the numerical reading on the alco-sensor device. The trial judge stated that he would allow the testimony in “and we’ll deal with it. You know, we will not let it go to the jury.” It is well established that “alco-sensor results are not used as evidence of the amount of alcohol or drug in a person’s blood. Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” (Citations and punctuation omitted.) Keenan v. State, 263 Ga. 569, 571 (2) (436 SE2d 475) (1993). Thus, this Court has held that such information is not admissible even for considering probable cause. State v. Holler, 224 Ga. App. 66 (479 SE2d 780) (1996). But see State v. Rish, 295 Ga. App. 815, 817 (673 SE2d 259) (2009) (citing numerical alco-sensor reading in reversing the grant of defendant’s motion to suppress).

But even if the trial court erred in admitting this evidence, Rowell has failed to show harm. “[A] reversal is not warranted simply because the judge heard . . . allegedly inadmissible evidence. When the judge sits as the trier of fact, it is presumed that he will consider only legally admissible evidence.” (Citation and punctuation omitted.) Poole v. State, 270 Ga. App. 432, 435 (2) (606 SE2d 878) (2004). “[I]t is presumed that the judge, as the trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible.” (Citation omitted.) Hopkins v. State, 209 Ga. App. 337, 339 (3) (433 SE2d 423) (1993). Here the trial judge stated only that he would “deal” with the evidence. His letter order indicates only that Hardage “conducted three field sobriety tests” and does not cite the numerical alco-sensor reading as a basis for denying the motion to suppress. Accordingly, nothing exists in the record to overcome the presumption that the trial judge properly disregarded the numerical alco-sensor evidence. In any event, we have previously found that probable cause existed even without the alco-sensor evidence, and thus this contention affords no basis for reversal.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       (Footnote omitted.) Bramlett v. State, 302 Ga. App. 527, 530 (691 SE2d 333) (2010).

       We note that some of our sister states have applied a somewhat different analysis to reach the same result. Those states have held that an officer’s action in advising a person that he would be arrested if he refuses to submit to field sobriety tests is not improperly coercive if the officer had probable cause to arrest the person for DUI. See City of Columbus v. Bickis, 2010 WL 2706257, 7 (B) (Ohio App. 10 Dist. 2010); State v. Marks, 644 NW2d 35, 37 (Iowa App. 2002); State v. Medenbaeh, 48 Or. App. 133 (616 P2d 543) (1980).


text:
    A11A1257.
    GALMORE v. THE STATE.
    (718 SE2d 896)
   Adams, Judge.

Jonathan Wesley Galmore was convicted of four counts of armed robbery, two counts of kidnapping, two counts of false imprisonment, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He appeals following the denial of his motion for new trial, arguing that the evidence of asportation was insufficient to support his kidnapping convictions under the standard announced by our Supreme Court in Garza v. State, 284 Ga. 696, 701-702 (1) (670 SE2d 73) (2008).

As to that issue, which is the only issue before us in this appeal, the evidence adduced at trial showed that Marcus Cherry, Shayna Britt and Bryan Cromer lived at 5279 Arrowind Drive in Gwinnett County. In the early morning hours of August 5, 2003, Cherry was in the residence along with a friend, Chris King; Cromer had left the house to go pick up Britt, who was at her mother’s house. Cromer and Britt returned home and exited their car, but before they could make it into the house two men wearing partially-concealing cloths around their face, subsequently identified as Galmore and Julius Johnson, came from around the side of the house, told Cromer to open the door, and took Cromer and Britt into the house at gunpoint.

Cherry and King were in the kitchen when the others entered, and Galmore and Johnson ordered them to get on the floor. The man with the shotgun had Cromer in a headlock with the shotgun pointed at him, and they took Cromer and Britt toward the kitchen and ordered them onto the floor also. Galmore and Johnson demanded that the victims give them money, drugs, and other items of value. The victims gave them cash, cell phones and other items they had on them, and these items were placed in a black bag. Galmore stayed in the kitchen with the shotgun pointed at the victims while Johnson began going through the house, ransacking parts of it, in search of more valuables, at one point dragging Cromer out of the kitchen to open a safe in his bedroom, which was empty. After Cromer and Johnson came back, all the victims but Britt were “hog tied” with cords of various sorts. Johnson told Britt to take off her clothes, but she refused.

While they were in the house, either Galmore or Johnson accidentally dialed Britt’s sister, Amber Tia Britt, on Cromer’s cell phone, which they had taken, and Amber called 911 because she could tell from what she was overhearing on the phone that something was happening in the house. Police were dispatched to the residence, and when Galmore and Johnson started to leave through the front door they saw that the police had arrived so they turned and ran down to the bottom floor of the house. The victims were able to free themselves and went outside, and Galmore and Johnson eventually surrendered and were taken into custody.

As is applicable here, whether a putative asportation is more than merely incidental to another crime depends on four factors. Those four factors are:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Garza, 284 Ga. at 702.

However, as our Supreme Court has noted “[i]n cases where the Garza standard is applicable, this Court has not required the satisfaction of all four factors to establish that asportation has occurred.” Hammond v. State, 289 Ga. 142, 144 (2) (710 SE2d 124) (2011). Rather, even when the movement is of minimal duration, which was the case here, and occurs before or during the commission of other offenses, asportation has been satisfied where the movement is not an “inherent part” of any other offense, and the “movement create [s] an additional danger to the victims by enhancing the control” of the perpetrators. Tate v. State, 287 Ga. 364, 366 (695 SE2d 591) (2010). “The test was designed to determine whether the movement was one ‘serving to substantially isolate the victim from protection or rescue — or merely a “criminologically insignificant circumstance attendant to some other crime.’ ” Garza, 284 Ga. at 702 (1).” Wright v. State, 300 Ga. App. 32, 34 (1) (684 SE2d 102) (2009).

Here, although Galmore and Johnson used Britt and Cromer to gain entry into the residence so they could perpetrate the robberies, they could also have robbed the victims of the items they took from them outside the house and could have gained entry to the house in other ways to take the items from inside the house and rob the occupants. Thus, we cannot say this movement, which occurred prior to the commission of the actual robberies, was integral to these crimes. Moreover, moving Britt and Cromer from outside to inside decreased the chance a passerby would see them and realize a crime was in progress, thereby decreasing the chance of detection and isolating these victims from potential rescue. E.g., Bryant v. State, 304 Ga. App. 755, 757 (1) (697 SE2d 860) (2010). And forcing Britt and Cromer to go into the same part of the house as Cherry and King clearly made it easier for Galmore and Johnson to control them, increasing the danger to them and making it less likely they could escape. Thomas v. State, 289 Ga. 877 (717 SE2d 187) (2011). See also Brown v. State, 288 Ga. 902, 906 (3) (708 SE2d 294) (2011); Henderson v. State, 285 Ga. 240 (675 SE2d 28) (2009); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010).

Decided November 15, 2011.

Clark & Towne, David E. Clark, Wystan B. Getz, for appellant.

Daniel J. Porter, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.

Thus, contrary to Galmore’s contention otherwise, we find the evidence of asportation was sufficient in this case, and affirm his kidnapping convictions.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       Galmore was convicted following a bench trial of possession of a firearm by a convicted felon, and convicted by a jury on the remaining counts.

       The State argues that the evidence of asportation is sufficient under both the Garza standard and the subsequent amendment to the statute, but that amendment only applies to crimes committed on or after July 1, 2009, OCGA § 16-5-40, and the crimes here were committed in 2003.

       By this time Johnson had a handgun, which he had taken from the house.


text:
    A11A1266.
    ADAMS v. THE STATE.
    (718 SE2d 899)
   Doyle, Judge.

Following a jury trial, John Lawrence Adams was convicted of criminal attempt to entice a child for indecent purposes and making a false statement in a matter within the jurisdiction of a sheriffs office. Adams appeals following the denial of his motion for new trial, arguing that the trial court violated OCGA § 17-8-57 and erred when charging the jury. Adams also challenges the sufficiency of the evidence supporting his conviction for criminal attempt to entice a child for indecent purposes. We affirm, for the reasons that follow.

Viewed in favor of the verdict, the record shows that Robyn Still, an investigator with the White County Sheriffs Department, established an undercover online identity as part of an investigation intended to target child predators. Still identified herself under the pseudonym “Savannah Patterson,” a 14-year-old girl, and she posted a photograph of a 14-year-old child.

On March 9, 2007, Savannah logged into a regional chat room and was contacted by Adams, whose user name was “million_ham-sterjnarch,” and they began communicating through instant messaging. After Savannah disclosed that she was 14 years old, Adams asked her if she liked older men and sex, and Savannah indicated that she was a virgin. Adams then suggested that they meet, describing various sexual acts that he intended to engage in with Savannah, including vaginal, oral, and anal sex. Adams also used a webcam to depict himself masturbating while he communicated with Savannah, and Still recorded the video, which included shots of Adams’s face. At one point, Adams warned Savannah that she should not tell her mother about their conversations and that they needed to “be careful” because he “[did not] want to get in trouble . . . [for b]eing with a minor.”

Savannah agreed to meet Adams, but suggested that they meet at the bathrooms at the dam at Unicoi State Park because her house was not listed on a map and was difficult to find. Adams agreed, stating that he would be driving a black Ford truck and would bring condoms.

On the morning of their arranged meeting, Adams was taken into custody on a dock in Unicoi State Park across the lake from the arranged meeting location near the dam. Adams’s truck, a black Ford, which did not have a license plate, was in the nearby parking lot. Police found a computer, several cameras, and a receipt upon which someone had handwritten Savannah’s name and home address. The police also found condoms in both the truck and Adams’s pockets.

Police transported Adams to the police station, where they interviewed him. During his interview, Adams advised Still that he lived in Florida. Adams also gave the following written statement:

It’s been a fant[as]y of mine to have sex with a underaged girl. I know it’s wrong[,] and [I] need help with this problem. I was going to meet her in Helen. I need help with this problem. I know [I] need help. I am sorry for what [I]’ve done. I am done with the [Ijnternet. Don’t want [i]t. I know [it’s] wrong. I was wanting this stuff to [h]appen[.] I was scared though. I’m just really sorry and feel terrible about what happened[.]

Adams was charged with two counts of criminal attempt to commit aggravated child molestation (Counts 1 and 2), criminal attempt to commit child molestation (Count 3), criminal attempt to commit enticing a child for indecent purposes (Count 4), three counts of violating the Computer Pornography and Child Exploitation Act (“CPCEA”) (Counts 5, 6, and 7), two counts of making a false statement in a matter within the jurisdiction of a sheriff s office (Counts 8 and 9), use of a license plate to conceal identity (Count 10), and removal of a license plate to conceal identity (Count 11).

The jury found Adams guilty of Counts 4, 5, 6, 7, and 8. The jury was unable to reach a verdict as to Counts 1, 2, or 3, and the trial court declared a mistrial as to those charges. The State entered a nolle prosequi as to Count 9, and the jury found Adams not guilty on Counts 10 and 11. The trial court subsequently entered an order of acquittal as to Counts 1, 2, 3, 9, 10, and 11, and sentenced Adams to confinement for the remaining counts. Adams filed a motion for new trial on several grounds, and the trial court granted the motion as to Counts 5, 6, and 7 based on the State’s agreement thereto, but denied the motion as to Counts 4 (criminal attempt to entice a child for indecent purposes) and 8 (making a false statement in a matter within the jurisdiction of a sheriffs office). This appeal followed.

1. Adams argues that the trial court violated OCGA § 17-8-57 in two instances. Pursuant to OCGA § 17-8-57,

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

To constitute a violation of the statute, “the comments must focus on a disputed issue of material fact. The purpose of this limitation, in part, is to prevent the jury from being influenced by any disclosure as to the judge’s opinion of a witness’s credibility.”

Defense counsel did not move for a mistrial or object to either of the trial court’s comments that Adams argues were improper. Nevertheless, Adams “is entitled to a new trial if the judge’s comments violated OCGA § 17-8-57, because such a violation always constitutes plain error as a matter of law.”

(a) During voir dire, defense counsel asked the prospective jurors whether they used Facebook. One prospective juror responded that although she did not use Facebook personally, she did register and view her 25-year-old daughter’s profile page. The trial court then stated, “The problem is, Tammy, you shouldn’t have told him she was 25. You don’t look 25.”

Adams maintains that part of his defense at trial was that he did not believe Savannah was a minor. Therefore, according to Adams, the trial court’s comment to the juror regarding her age constituted a comment on Adams’s credibility and his defense, and it influenced the jury’s verdict. We disagree. Assuming, arguendo, that the issue of whether Adams believed that Savannah was 14 years old was disputed, the trial court’s comment to the juror did not “express or intimate [its] opinion as to what has or has not been proved.” Thus, the trial court’s comment did not violate OCGA § 17-8-57, and this argument presents no basis for reversal.

(b) Adams also contends that the trial court violated OCGA § 17-8-57 during defense counsel’s cross-examination of Still regarding Adams’s representation to her that he lived in Florida when he actually lived in Stone Mountain. Defense counsel asserted that Still stated in her warrant for Count 8 that Adams “knowingly and wilfully falsifie[d], concealed] or cover[ed] up by any trick, scheme, or device a material fact, [or] ma[de] a false, fictitious, or fraudulent statement or representation.” Counsel then asked Still if Adams’s statement that he lived in Florida “was ... a material fact?” The trial court then asked trial counsel:

[D]o you want me to charge the jury as to the entirety of that charge or as indicted? Your client is only indicted with one small sliver of such. Your questioning of her lays out the entirety of the statute. I just want to know that because I’m drawing these jury charges here. ... I can charge them on every possible function and permutation of the law, but all I’ve charged is what the State has indicted him for, which is that one thing, a false statement in the criminal investigation. I have limited it to that effect so he can’t be indicted or convicted for something he may or may not have been charged with.

Defense counsel responded that he intended to ask Still “if that was a material fact in the investigation.” The Court then stated: “Okay. Then I’m going to enlarge that possibility, if you insist on asking her that, so that the jury can consider what he did.”

Adams argues on appeal that the trial court’s statement “improperly expressed an opinion as to what had been proved and a disputed issue of fact.” Again, we disagree.

“OCGA § 16-10-20 provides three ways in which the crime of giving a false statement may be committed: (1) by falsifying or concealing a material fact; (2) by making a false statement or representation; or (3) by knowingly making or using a false writing.” In the indictment, the State charged that Adams “did knowingly and willfully make a false statement,” not that he concealed or falsified a material fact. Thus, the trial court was attempting to explain to defense counsel that he was expanding the indictment by asking Still about a separate manner of violating the statute and that if counsel insisted on doing so, the court would enlarge the jury charges and admit any evidence to support that manner of committing the crime.

“The trial court’s comments were limited in scope to directing defense counsel and did not involve [Adams’s] guilt or innocence.” The Supreme Court has held that OCGA § 17-8-57 “does not generally extend to colloquies between the judge and counsel regarding the admissibility of evidence.” In addition, “remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.”

Contrary to [Adams’s] arguments, the complained of comments by the trial court demonstrate [an] authorized attempt [ ] to control the conduct of the trial and to guide the defense attorney to ensure a fair trial and the orderly administration of justice. The comments were limited in scope, did not involve [Adams’s] guilt or innocence, and did not express an opinion on what had or had not been proved.”

Thus, the trial court’s comments did not violate OCGA § 17-8-57, and this argument is without merit.

2. Adams argues that the trial court’s jury instructions violated his due process rights because they allowed him to be convicted of criminal attempt to entice a child for an indecent purpose in a manner not alleged in the indictment.

The indictment alleged in Count 4 that Adams

did perform an act which constitutes a substantial step toward the commission of solicitation of Savannah Patterson, someone believed by the accused to be under the age of sixteen years, to Unicoi Park, White County, Georgia, to wit: said accused did engage in a sexually explicit online chat with Savannah Patterson and drove to the arranged meeting place for the purpose of committing Aggravated Child Molestation, contrary to the laws of said State, the good order, peace and dignity thereof.

The trial court gave the following jury instruction as to the criminal attempt to entice a child offense:

As to Count 4, I instruct you that a person commits the offense of criminal attempt to commit the offense of enticing a child for indecent purposes when he solicits or entices any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts. A person commits the offense of criminal attempt to commit the offense of enticing a child for indecent purposes when he solicits or entices any child under the age of 16 to any place whatsoever for the purposes of child molestation when, with the intent — when he, with the intent to commit child molestation, performs any act — I’m sorry, let me start over again with that. A person commits the offense of criminal attempt to commit the offense of enticing a child for indecent purposes when he solicits or entices any child under the age of 16 to any place whatsoever for the purpose of child molestation when he, with the intent to commit child molestation, performs any act which constitutes a substantial step towards the commission of said crime.

Adams argues, therefore, that the instruction led the jury to believe that it could convict him of criminal attempt to entice a child for indecent purposes if he attempted to solicit Savannah with the intent to commit child molestation, as opposed to with the intent to commit aggravated child molestation as alleged in the indictment.

A criminal defendant’s right to due process may be endangered when ... an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.

In the instant case, there was evidence to support a conviction based on the unalleged manner of committing the crime.

While instructing the jury[, however,] that a crime can be committed in a manner different from that charged in the indictment can constitute reversible error, a reversal is not mandated where . . . the charge as a whole limits the jury’s consideration to the specific manner of committing the crime alleged in the indictment.

“Here, the trial court read the indictment to the jury, instructed the jury that the [Sítate had the burden of proving every material allegation in the indictment beyond a reasonable doubt[,] and sent the indictment out with the jury during its deliberations.” And, after defining the crimes alleged, the trial court instructed the jury that it would be authorized to find Adams guilty if it believed beyond a reasonable doubt that he committed the crimes “as set forth in the indictment.” “These instructions cured any complained of problem with the [charge of attempting to entice a child].”

3. Finally, Adams challenges the sufficiency of the evidence as to his conviction for criminal attempt to entice a child for indecent purposes.

(a) Adams contends that the evidence was insufficient because the State failed to prove that he “drove to the arranged meeting place” as alleged in the indictment. Instead, he argues, the evidence shows that he was arrested across the lake from the meeting place.

When a defendant challenges the sufficiency of the evidence on appeal, this Court must view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. An appellate court determines evidence sufficiency rather than weighing the evidence or determining witness credibility. The standard is whether, based on the evidence presented, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The review of the sufficiency of the evidence to support venue is no different because venue is an essential element that must be proven beyond a reasonable doubt in every criminal trial.

Here, the State introduced testimony regarding the park, including the location of Adams’s arrest and its proximity to the bathrooms, as well as a photograph depicting the scene. Viewed in favor of the verdict, we conclude that there was sufficient evidence to authorize a rational jury to conclude that Adams drove to the arranged meeting place and find him guilty of Count 4.

(b) Adams further argues that the State failed to prove venue. We disagree.

First, Adams contends that venue was not proper because the State failed to prove that the explicit online chat occurred in White County, where he was tried.

Our Georgia Constitution requires that venue in all criminal cases must be laid in the county in which the crime was allegedly committed. Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. The [S]tate may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence. On appeal, we view the evidence in the light most favorable to the verdict and determine whether the evidence was sufficient to permit a finding that the crime was committed in the county where the defendant was indicted.

As we have previously held,

[t]he crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 requires the showing of a joint operation of the act of enticing a child and the intention to commit acts of indecency or child molestation. A conviction under OCGA § 16-6-5 need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted. Accordingly, the crime is complete when the child is enticed with the requisite intent, regardless of the ultimate site whereat the enticer contemplates that the act of indecency or child molestation is to be perpetrated. Thus, it is immaterial that the evidence showed that appellants actually took the child into a county other than that wherein they were prosecuted. What would be material is whether the evidence showed that, while in the county wherein they were prosecuted, appellants enticed the child with the requisite intent to commit the alleged act of indecency or child molestation at any location.

Thus, venue properly lies in the county wherein Adams attempted to entice Savannah. Based on the allegations of the indictment, venue in this case is not limited to Adams’s physical location at the time he used the online service to attempt to entice Savannah. Count 4 of the indictment alleged that Adams:

did perform an act which constitutes a substantial step toward the commission of solicitation of Savannah Patterson, someone believed by the accused to be under the age of sixteen years, to Unicoi Park, White County, Georgia, to wit: said accused did engage in a sexually explicit online chat with Savannah Patterson and drove to the arranged meeting place for the purpose of committing Aggravated Child Molestation, contrary to the laws of said State, the good order, peace and dignity thereof.

Decided November 15, 2011

Jennifer A. Trieshmann, for appellant.

N. Stanley Gunter, District Attorney, Jeremy D. Clough, Assistant District Attorney, for appellee.

The crime as alleged focuses on Adams’s utilization of an online chat service to entice Savannah. Still testified that she was located in White County when she posed as Savannah to communicate with Adams on the Internet. Based on the nature of the online service used in this case, we conclude that venue was proper either in White County or in the county in which Adams utilized the online chat service.

Judgment affirmed.

Miller, P. J., and Ellington, J., concur.

       OCGA §§ 16-6-5 (a); 16-4-1.

       OCGA § 16-10-20.

       See Logan v. State, 309 Ga. App. 95, 95-96 (709 SE2d 302) (2011).

       Savannah listed her age as 18, but stated within the comment section other profile that she was actually 14.

       Police also found three license plates in Adams’s truck.

       (Punctuation omitted.) Ward v. State, 306 Ga. App. 274, 276 (701 SE2d 900) (2010).

       Id. at 276-277. See State v. Gardner, 286 Ga. 633, 634 (690 SE2d 164) (2010).

       Still was the only trial witness.

       OCGA § 17-8-57.

        Dawkins v. State, 278 Ga. App. 343, 344-345 (629 SE2d 45) (2006).

       (Punctuation omitted.) Mathis v. State, 276 Ga. App. 205, 206-207 (622 SE2d 857) (2005).

       (Punctuation omitted.) Rowe v. State, 266 Ga. 136, 139 (2) (464 SE2d 811) (1996).

       (Citation and punctuation omitted.) Crowe v. State, 265 Ga. 582, 594 (19) (458 SE2d 799) (1995).

        Mathis, 276 Ga..App. at 208.

       See id.

       (Emphasis supplied.)

       (Emphasis supplied.)

       We note that the trial court instructed the jury as to child molestation and aggravated child molestation, based on Counts 1, 2, and 3. As indicated, supra, Adams was acquitted of those charges.

       (Citations omitted.) Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999).

       (Punctuation omitted.) Machado v. State, 300 Ga. App. 459, 462 (5) (685 SE2d 428) (2009).

       Id. at 462-463 (5).

       See Searcy v. State, 168 Ga. App. 233, 234 (308 SE2d 621) (1983). Compare Wallin v. State, 305 Ga. App. 663, 664 (1) (700 SE2d 837) (2010).

       See Machado, 300 Ga. App. at 463 (5). Compare Smith v. State, 310 Ga. App. 418, 422 (1) (714 SE2d 51) (2011).

       (Citation and punctuation omitted.) Melton v. State, 282 Ga. App. 685, 685-686 (639 SE2d 411) (2006).

       (Punctuation omitted.) Bowen v. State, 304 Ga. App. 819, 822-823 (1) (b) (697 SE2d 898) (2010).

       (Citation and punctuation omitted; emphasis supplied.) Abreu v. State, 206 Ga. App. 361, 363 (3) (425 SE2d 331) (1992).

       Thus, the State had to prove only that the enticement occurred in White County. Whether Adams drove to White County or was arrested in White County is immaterial to the issue of venue.

       See Selfe v. State, 290 Ga. App. 857, 861-862 (2) (660 SE2d 727) (2008) (in a case in which the State alleged a violation of the Computer or Electronic Pornography and Child Exploitation Prevention Act (“CPCEA”) and obscene Internet contact, both of which involved the use of online services, venue was proper in the county where the alleged victim was located during the online contact with the defendant); Patel v. State, 282 Ga. 412, 415-416 (3) (651 SE2d 55) (2007) (venue in a case involving a violation of the CPCEA, which focuses on utilization of an online or Internet service, is properly laid in either the county where the accused transmitted the obscene images and solicitations or the county where the alleged victim received the online contact). See also Rogers v. State, 298 Ga. App. 895, 898 (3) (c) (681 SE2d 693) (2009) (in case alleging the use of a telephone to facilitate the commission of a felony, the offense was “ ‘committed’ for venue purposes” both in the county in which the call was made and county where the call was received).