author: Adams, Judge.

text:
    A10A2034.
    HIGGINS v. THE STATE.
    (707 SE2d 523)
   Adams, Judge.

Christopher Higgins appeals the trial court’s denial of his plea in bar and motion to dismiss on constitutional speedy trial grounds.

Higgins was arrested on March 17, 2007, and charged with aggravated assault with a deadly weapon and possession of a firearm during the commission of a felony, based upon acts alleged to have occurred on December 6, 2006; he was formally indicted on those charges three days later, on March 20, 2007. The case came on the trial calendar for October 26, 2007. Although Higgins’ attorney announced ready for trial, the State was unable to locate the victim, who had moved without providing a forwarding address. The case was nolle prossed, and the trial court dismissed it at that time.

On December 16, 2008, the State re-indicted Higgins on the charges, and the case was placed on a plea and arraignment calendar for March 2, 2009, but Higgins failed to appear. On March 25, 2009, the trial court placed the case on the court’s Administrative Dead Docket until such time as Higgins could be found and issued a bench warrant for his arrest. Higgins was subsequently arrested on September 1, 2009, and made bond on September 29. The trial court signed an order on December 9, 2009, formally removing the case from the dead-docket and restoring it to open status. At no time, following either arrest, did Higgins file a demand for a speedy trial, but on February 1, 2010, Higgins filed a “Plea in Bar and Motion to Dismiss on Constitutional Speedy Trial Grounds.” Following a March 31, 2010, hearing on the motion, the trial court issued an order dated May 28, 2010, denying Higgins’ motion to dismiss. This appeal followed.

In examining an alleged denial of the constitutional right to a speedy trial, courts must engage in a balancing test with the following factors being considered: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). The existence of no one factor is either necessary or sufficient to sustain a speedy trial claim, and a trial court’s findings of fact and its weighing of disputed facts will be afforded deference on appeal.

(Citation omitted.) Brown v. State, 287 Ga. 892, 894 (1) (700 SE2d 407) (2010). Accordingly, we review the denial of a defendant’s constitutional speedy trial claim for an abuse of discretion. Zeger v. State, 306 Ga. App. 474, 477 (3) (702 SE2d 474) (2010).

1. Presumption of Prejudice. Before applying the Barker balancing test, we look first to the length of the delay, which figures into our analysis in two respects:

First, a court must determine whether the delay has crossed the threshold dividing ordinary from “presumptively prejudicial” delay, since, by definition, the accused cannot complain that the government has denied him a “speedy” trial if it has, in fact, prosecuted his case with customary promptness. If the delay passes this threshold test of “presumptive prejudice,” then the Barker inquiry is triggered. The delay is then considered a second time by factoring it into the prejudice prong of the Barker analysis, with the presumption that pretrial delay has prejudiced the accused intensifying over time. However, the presumptive prejudice arising from delay cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria. Instead, it is part of the mix of relevant facts, and its importance increases with the length of delay.

(Citation and punctuation omitted.) Brown v. State, 287 Ga. at 894-895 (1) (a).

“The constitutional right to a speedy trial attaches on the date of the arrest or when formal charges are initiated, whichever first occurs.” State v. White, 282 Ga. 859, 861 (2) (a) (655 SE2d 575) (2008). And, for purposes of our analysis, the computation of the length of delay ends when the trial court rules on the motion to dismiss. Ruffin v. State, 284 Ga. 52, 55 (2) (a) (663 SE2d 189) (2008). Higgins was arrested on March 17, 2007, and his motion to dismiss was decided on May 28, 2010. Therefore, over 38 months elapsed between Higgins’ initial arrest, which preceded the original indictment, and the ruling on his motion.

But Higgins’ “prosecution cannot be considered as having been delayed for that entire period.” Scandrett v. State, 279 Ga. 632, 633 (1) (a) (619 SE2d 603) (2005). “ ‘When defendants are not incarcerated or subjected to other substantial restrictions on their liberty, a court should not weigh that time towards a claim under the Speedy Trial Clause.’ United States v. Loud Hawk, 474 U. S. 302, 312 (II) (106 SC 648, 88 LE2d 640) (1986).” Id. at 633-634 (1). Because the original indictment was nolle prossed on October 26, 2007 and Higgins was not re-indicted until December 16, 2008, the intervening 14-month period can be “eliminated from consideration in determining the length of delay in his prosecution.” Id. at 634 (1) (a). Even with this adjustment, however, the delay was twenty-four months, and Georgia courts have held that a delay of more than one year is presumptively prejudicial. See Ogletree v. State, 303 Ga. App. 581, 582 (a) (693 SE2d 909) (2010) (delay exceeding one year presumptively prejudicial). Accordingly, the delay in this case is presumptively prejudicial, triggering the application of the Barker balancing test. Henderson u. State, 290 Ga. App. 427, 431 (662 SE2d 652) (2008) (presumptive prejudice alone cannot carry a Sixth Amendment claim, without regard to other Barker criteria).

2. Barker Balancing Test. We next consider the four factors outlined in Barker to determine whether a speedy trial violation occurred.

(a) Length of Delay. Under the first factor of the Barker test, we look again to the length of delay. The trial court found that the delay in this case, which it erroneously calculated at 18 months, was not uncommonly long, and thus that it weighed against granting the motion to dismiss. Thus presumably the trial court weighed this factor against Higgins.

A delay is considered uncommonly long under the test to “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” Doggett v. United States, 505 U. S. 647, 651, 652 (II) (112 SC 2686, 120 LE2d 520) (1992) (defining first prong of Barker test as a consideration of whether delay is “uncommonly long”). This factor “is part of the mix of relevant facts, and its importance increases with the length of delay.” (Punctuation omitted.) Ruffin v. State, 284 Ga. at 56 (2) (b) (i).

As noted above, prejudice is presumed with a delay of approximately one year. The 24-month pretrial delay doubles the amount of time necessary to establish a presumption of prejudice. Moreover, the Supreme Court has held that a delay of two years, two months and twenty-three days was uncommonly long in a noncapital murder case, as such a delay “is unusual even in comparison with other non-capital murder cases.” (Footnote omitted.) Ruffin v. State, 284 Ga. at 58 (2) (b) (i) (although defendant incarcerated much of that time, the court held that was not the deciding factor). We conclude, therefore, that we must consider the 24-month delay in this aggravated assault case to be uncommonly long. See State v. Stallworth, 293 Ga. App. 368 (667 SE2d 147) (2008) (delay of two years, four months uncommonly long in burglary case). Accordingly, the trial court erred in weighing this factor against Higgins, as it should have been weighed against the State, although not too heavily as the delay is not egregious.

(b) Reason for Delay. Higgins concedes that the case proceeded at an acceptable pace between his first arrest and its placement on a trial calendar in October 2007. But the case was nolle prossed at that time due to the unavailability of the State’s main witness. After Higgins was re-indicted, he failed to appear for his scheduled March 2, 2009 arraignment. His counsel indicated at the motion hearing that the notice of the arraignment was sent to an old address, so Higgins did not receive it. The trial court found that because no charges were pending against Higgins, it was not unreasonable for him to fail to apprise the court of his new address. Higgins was re-arrested six months later on September 1, 2009, and the trial court noted that the case appeared on a September 28, 2009 calendar and then a January 6, 2010 calendar. On those occasions, Higgins’ trial attorney requested discovery, but the State had not complied with that request as of the time of the motion hearing.

The trial court found, based upon these circumstances, that the reason-for-delay factor of the Barker test must be charged against the State, but “not to the extent of dismissing this matter since there is not evidence of anything more than mere negligence on the part of the State.” We agree with the trial court that nothing exists in the record evidencing “that most serious abuse — ‘[a] deliberate attempt to delay the trial in order to hamper the defense.’ ” (Citations and punctuation omitted.) Layman v. State, 284 Ga. 83, 85 (663 SE2d 169) (2008). See also Barker v. Wingo, 407 U. S. at 531 (“[a] more neutral reason such as negligence . . . should be weighted less heavily” against the prosecution); Brown v. State, 287 Ga. at 895 (1) (b). Accordingly, the trial court properly weighed this factor against the State.

(c) Assertion of Right to Speedy Trial. Higgins made no demand for a speedy trial prior to filing his motion to dismiss on February 1, 2010, more than 22 months after his initial arrest and indictment. See State u. Porter, 288 Ga. 524, 528 (2) (c) (3) (705 SE2d 636) (2011) (motion to dismiss proper vehicle for asserting right to speedy trial). “It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citations and punctuation omitted.) Brannen v. State, 274 Ga. 454, 456 (553 SE2d 813) (2001). “The failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” (Punctuation omitted.) Frazier u. State, 277 Ga. App. 881, 882 (c) (627 SE2d 894) (2006). This third factor must be weighed heavily against Higgins because he failed to raise his constitutional right to a speedy trial following his first arrest and indictment, and in fact, did not raise the issue until after the case had been placed on a trial calendar on two occasions following his second arrest. See State u. Porter, 288 Ga. at 528 (2) (c) (3); Brown v. State, 287 Ga. at 895-896 (1) (c), (2) (c) (holding that this factor weighed heavily against co-defendants who waited two and three years, respectively, to assert speedy trial rights); Lambert v. State, 302 Ga. App. 573, 576 (3) (692 SE2d 15) (2010); Simmons v. State, 290 Ga. App. 315, 316 (3) (659 SE2d 721) (2008). The trial court properly weighed this factor against Higgins, although the court did not specifically weigh the factor heavily against him.

(d) Prejudice. Under the final Barker factor, measuring the prejudice to a defendant, the United States Supreme Court

identified three interests [that] the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pretrial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.

(Citations and punctuation omitted.) Williams v. State, 279 Ga. 106, 109 (1) (d) (610 SE2d 32) (2005).

As the trial court found, Higgins conceded at the motion hearing that no oppressive pretrial incarceration occurred. Higgins’ counsel argued at the hearing, however, that he suffered “undue anxiety and concern” as a result of the delay “beyond just regular mental and emotional strain,” noting that it affected Higgins’ ability to retain a job. But Higgins made no showing of any unusual anxiety, concern or strain beyond these generalized statements. “Anxiety and concern of the accused are always present to some extent, and thus absent some unusual showing are not likely to be determinative in defendant’s favor.” (Citation and punctuation omitted.) Layman v. State, 284 Ga. at 86. In any event, Higgins “chose not to alleviate his anxiety and concern by filing a speedy trial demand” until 22 months after his initial arrest and indictment. Lambert v. State, 302 Ga. App. at 577 (4).

Higgins also contends that his defense was impaired by the delay because he was unable to locate his key defense witness after the second indictment, although she was available at the time of the original October 2007 hearing. To prove that his defense was impaired by the delay, however, Higgins “must show . . . specific evidence of how the delay impaired his ability to defend himself. If the defendant’s argument is that a witness has become unavailable, he must show that the unavailable witness could supply material evidence for the defense.” (Citation, punctuation and footnote omitted; emphasis in original.) Ferguson v. State, 303 Ga. App. 341, 345 (2) (d) (693 SE2d 578) (2010).

Decided March 8, 2011.

Scott W. Dawkins, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

Higgins failed to demonstrate how the delay made his witness unavailable other than his attorney’s statement at the motion hearing, “I believe we had her three years ago. This is going — this would be a witness that would, I believe, prove our case, or help our case. And we have no idea where she is now. We had her three years ago when the case was set for trial. . . . We don’t have her anymore.” Higgins’ counsel later reiterated, “our key witness we cannot find. We had [her] three years ago.” But Higgins failed to show what efforts, if any, he made to locate the witness. Moreover, other than to say that this witness would “directly contradict” the victim’s account, he made no proffer of what the victim’s testimony would be. Thus, Higgins fell short of his burden to demonstrate how the missing witness could supply material evidence for the defense. See State v. Porter, 288 Ga. at 529 (2) (c) (4); Lynch v. State, 300 Ga. App. 723, 725 (1) (d) (686 SE2d 268) (2009). “To demonstrate an impaired defense, [a defendant] must present more than vague or conclusory statements; he must offer specific evidence.” Lambert v. State, 302 Ga. App. at 577 (4). Higgins did not meet his burden of showing that his defense was impaired, and this factor accordingly must be weighed against him.

(e) Balancing of Barker Factors. In summary, two of the Barker factors — length of delay and reason for delay — should be counted against the State. But the lack of prejudice counts against Higgins and his failure to timely assert his speedy trial right must be weighed heavily against him. Under these circumstances, although the trial court erred in weighing the first factor against Higgins, we cannot say that it was an abuse of discretion to deny Higgins’ motion to dismiss. Lambert v. State, 302 Ga. App. at 578 (5).

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       In applying Scandrett here, we do not mean to hold that in all cases of nolle prosequi, any resulting delay should be removed from the speedy trial calculation. But in this case, the trial court found that the 14-month period should be removed, and we find no evidence in the record to demonstrate that this was an abuse of discretion.

       The trial court erroneously deducted the six-month period between the March 2009 arraignment and Higgins’ September 2009 arrest from its calculation of delay. The trial court made this deduction based upon Higgins’ failure to appear at the arraignment, citing Smith v. State, 260 Ga. App. 403, 406 (579 SE2d 829) (2003). But in the Smith case, there was no question that the defendant was aware of his duty to appear for trial when he failed to show and he was not located for 14 years. Id. Here, the evidence reflects that Higgins may not have been aware of the March 2009 arraignment date. Moreover, the Smith opinion was addressing the second Barker factor, the reason for the delay, and not the first factor, the length of delay.

       If we were to calculate the time as 38 months, not allowing for the period when the case was nolle prossed, our analysis would remain the same, although this factor might perhaps weigh more heavily against the State. But even applying the 38-month period, we would find no violation of Higgins’ right to a speedy trial under the Barker analysis when all the factors were weighed. See, e.g., Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001) (no speedy trial violation for delay of 51 months where defendant failed to prove impairment to his defense).

       He also contends that he did not know that the State’s witnesses were available until the motion hearing due to the State’s failure to provide discovery.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A10A2036.
    SCOTT et al. v. SCOTT et al.
    (707 SE2d 166)
   BARNES, Presiding Judge.

In this case, two children filed suit against their mother for the wrongful death of their father, represented by their uncle as next friend. The children’s paternal grandparents moved to intervene or be substituted as next friend in the wrongful death suit, alleging that the uncle has a conflict of interest. The trial court denied the motion because no statutory grounds exist allowing the grandparents to participate or intervene. This court granted the grandparents’ application for interlocutory review, and for the reasons that follow, we reverse and remand for the trial court to consider the merits of the motion.

The wrongful death suit arose after Lona Lee Scott killed her husband, Ralph Clifton Scott. Lona Lee was prosecuted for murder in DeKalb County and claimed self-defense, and the February 2010 trial resulted in a hung jury. In the meantime, Giuseppe Rago, who is Lona Lee’s brother-in-law and is married to her twin sister, was appointed executor of Ralph’s estate pursuant to the terms of Ralph’s will. Acting as executor and as “next friend” for Lona Lee and Ralph’s two minor children, Rago sued Lona Lee for Ralph’s wrongful death and other claims.

Believing that Rago is more closely aligned with Lona Lee than the children, Ralph’s parents John and Josephine Scott filed a “Motion to Intervene or Substitute as Next Friend of the Minor Children, Plaintiffs.” The Scotts contend that Rago has a conflict of interest and cannot adequately represent the children in the litigation. They asked for permission to intervene in the action or be substituted as “next friend” of the children. The trial court denied the motion, holding that the Scotts did not “set forth any right of a direct and immediate character which would authorize this Court to grant their request to intervene. Additionally, the bases for substitution of parties enumerated in OCGA § 9-11-25 do not apply here.”

The Scotts argue on appeal that the trial court erred in refusing to consider the merits of whether Rago has a conflict of interest and should be replaced as “next friend” of the minor children in prosecuting their suit against their mother. Pursuant to OCGA § 9-11-17 (c), a minor who does not have an appointed representative “may bring an action by his next friend.” The statute does not specify who should serve as “next friend,” and it appears that any person may act in this capacity. See Sanders v. Hinton, 171 Ga. 702, 707 (156 SE 812) (1931). The next friend, however, is akin to a guardian ad litem appointed by the trial court. See id.; OCGA § 9-11-17 (c). “[T]he appointment of a next friend is a matter within the discretion of the trial judge.” Kite v. Brooks, 51 Ga. App. 531, 536 (181 SE 107) (1935). Although the trial court need not formally appoint or select the next friend, the next friend serves as an officer of the court, and the trial court has oversight regarding the next friend and discretion to appoint alternate representation for a minor. See id.

Decided March 8, 2011.

James S. Altman, for appellants.

Spears & Spears, John W. Spears, Jr., Larry A. Ballew, for appellees.

The children’s grandparents assert that the uncle, who filed suit as next friend of the children, is aligned with the mother and thus cannot adequately represent the children’s interests in this wrongful death case. Although the grandparents themselves have no standing or legal interest in the wrongful death claim, they do have a legally recognized interest in the welfare of their grandchildren, who are the real parties in interest here. See, e.g., OCGA §§ 19-7-1 (b.l) (grandparent’s right to child custody in certain cases); 19-7-3 (grandparent’s right to petition for visitation).

Given the trial court’s gatekeeping role with respect to the next friend representative, as well as the Scotts’ interest in their grandchildren’s welfare, the trial court erred in refusing to consider the merits of the conflict claim. Undoubtedly, this is not a typical intervention situation. But if, in fact, Rago’s interests lie with the mother, who is his wife’s twin sister, the children’s interest in this litigation is at risk, and no current party is likely to raise the issue with the trial court. Under these circumstances, the trial court was authorized to address the conflict claim and consider whether the Scotts, or someone else, should be substituted as next friend for the children. See Stewart v. Turner, 229 Ga. App. 119, 122-123 (3) (493 SE2d 251) (1997) (where it appears that a minor’s interest in litigation may be adverse to his or her guardian, the trial court has an affirmative duty to determine whether the appointment of a guardian ad litem is necessary to protect the minor’s interest).

Judgment reversed and case remanded with direction.

Blackwell and Dillard, JJ., concur.

       Under these circumstances, equity provides the minor children with a claim against the surviving spouse, their mother, for the wrongful death of their father. See Carringer v. Rodgers, 276 Ga. 359, 360 (1) (578 SE2d 841) (2003); Belluso v. Tant, 258 Ga. App. 453, 455 (574 SE2d 595) (2002).


author: MILLER, Presiding Judge.

text:
    A10A2120.
    BOATRIGHT v. THE STATE.
    (707 SE2d 158)
   MILLER, Presiding Judge.

Following a jury trial, Joe Donald Boatright was convicted of child molestation (OCGA § 16-6-4 (a) (1)), aggravated sexual battery (OCGA § 16-6-22.2 (b)), and two counts of tattooing the body of a minor (OCGA § 16-5-71 (a)). Boatright filed a motion for new trial, which the trial court denied. On appeal, Boatright contends that (i) his trial counsel rendered ineffective assistance in several respects and (ii) the trial court erred in denying his motion to sever the offenses. We discern no error and affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence showed that Boatright shared a residence with his girlfriend, who was the aunt of the female victims, B. D. and C. D. On June 5, 2003, C. D. and her female friend, E K., who were both 15 years old, visited the residence. During that evening, C. D. and E K. asked Boatright to give them both tattoos. Although Boatright initially denied the girls’ requests, he later agreed to perform the tattooing. C. D. and E K. pulled down their pants and underwear to expose the intimate areas on their lower abdomens, where Boatright placed permanent “Playboy” bunny tattoos on both of the girls.

Later that night, C. D. and E K. fell asleep, sharing a bed with the aunt. While E K. was sleeping, Boatright entered the bed next to her. E K. awakened and discovered that Boatright was nude and was rubbing her leg.

Thereafter, on or about August 1, 2003, 14-year-old B. D., and her male cousin, A. E, visited Boatright’s residence. Later that evening, B. D. fell asleep on the living room couch, and A. F. feel asleep on the living room floor. While B. D. was sleeping, Boatright got onto the couch with her. B. D. was awakened when she felt Boatright’s hand in her pants and his fingers penetrating her vagina. At the time of the incident, A. F. also was awakened and observed Boatright touching B. D. Boatright then got up and left the room.

Months later, on or about October 6, 2003, B. D. disclosed the molestation incident to her father. B. D. stated that Boatright had threatened to kill her aunt if she told anyone about the molestation, and that she had delayed making the disclosure because she was afraid, upset, and embarrassed.

Upon hearing of the molestation incident, B. D.’s father reported the matter to local police authorities. During the ensuing investigation, a detective interviewed B. D., C. D., and E K. The detective observed and photographed the permanent tattoos that Boatright had placed on C. D. and E K. The detective also obtained statements from B. D. and E K. regarding the molestation incidents.

The detective went to Boatright’s residence to arrest him, but the residence was abandoned. In efforts to locate Boatright, the detective requested assistance from the Federal Bureau of Investigation (“FBI”). The detective and special agents subsequently learned that Boatright had fled to Florida and was using an alias to avoid prosecution. Boatright later fled to Louisiana, where he resided until the date of his arrest in 2007.

Following his arrest, Boatright was charged and convicted of the tattooing and sex offenses.

1. On appeal, Boatright contends that his counsel rendered ineffective assistance at trial.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Appellant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.

(Citations and punctuation omitted.) Farris v. State, 293 Ga. App. 674, 675-676 (667 SE2d 676) (2008). See also Sweet v. State, 278 Ga. 320, 321-322 (602 SE2d 603) (2004). Bearing these principles in mind, we address Boatright’s claims of ineffective assistance of counsel.

(a) Boatright first argues that his trial counsel was ineffective for failing to move for a mistrial when a State’s witness interjected bad character evidence. We discern no reversible error.

During the State’s case-in-chief, the prosecutor examined a FBI special agent regarding his efforts to locate Boatright following his flight to avoid prosecution. The special agent testified that his efforts included contacting a Georgia debt collection service, contacting the attorney general’s office in Texas, and conducting a computerized database check. When the special agent further expounded that he received information reflecting that the debt collection agency was trying to find Boatright and that Boatright had a suspended driver’s license, trial counsel immediately objected. The trial court sustained the objections, excused the jury from the courtroom, and conducted a bench conference to address the improper testimony. During the bench conference, the trial court advised the special agent that the content of the information he obtained during his search was inadmissible. The trial court then ordered a brief recess to allow the prosecutor to further instruct the special agent about restricting his responses to the examination questions. When the proceedings resumed, the special agent provided appropriate, nonobjectionable responses to the questions posed. There was no further mention of the improper bad character evidence.

After the trial court sustained his objections to the improper testimony, trial counsel did not move for a mistrial. Under the circumstances presented, however, a motion for a mistrial was not required. As an initial matter, the record reflects that the special agent’s improper remarks were fleeting, unsolicited, and nonrespon-sive to the prosecutor’s examination questions. “[A] nonresponsive answer that impacts negatively on a defendant’s character does not improperly place his character in issue.” (Citation and punctuation omitted.) Walker v. State, 282 Ga. 703, 705 (2) (653 SE2d 468) (2007).

Moreover, at the hearing on Boatright’s motion for new trial, trial counsel explained that he did not move for a mistrial as a matter of trial strategy because he did not believe that a mistrial was warranted and he did not want to draw further attention to the objectionable facts. Trial counsel’s strategy in this regard was not unreasonable. See Sweet, supra, 278 Ga. at 324 (5); Rivers v. State, 271 Ga. 115, 118 (2) (b) (516 SE2d 525) (1999).

Nor has Boatright shown that he was otherwise entitled to a mistrial based upon the circumstances. “A motion for mistrial is within the trial court’s discretion^]” (Footnote omitted.) Tarver v. State, 280 Ga. App. 89, 92 (2) (633 SE2d 415) (2006). A mistrial is not required where, as here, the trial court takes prompt action that effectively remedies the inadvertent introduction of “bad character” evidence at trial. See id. at 91-92 (2); Mims v. State, 278 Ga. App. 282, 283 (1) (628 SE2d 596) (2006). The trial court sustained the objections to the improper testimony and instructed the prosecutor and special agent to restrict the examination and responses. The special agent and prosecutor complied with the trial court’s instructions, and there was no further mention of the bad character evidence. In light of the prompt action taken by the trial court that effectively resolved the issue, a mistrial was not required. See Tarver, supra, 280 Ga. App. at 92 (2); Mims, supra, 278 Ga. App. at 283 (l). Since Boatright has not shown that he was entitled to a mistrial under the circumstances presented, trial counsel’s failure to pursue a meritless motion does not constitute ineffective assistance of counsel. See Warren v. State, 289 Ga. App. 481, 489 (7) (e) (657 SE2d 533) (2008); Fennell v. State, 271 Ga. App. 797, 802 (6) (d) (611 SE2d 96) (2005).

(b) Boatright further argues that trial counsel was ineffective when he introduced bad character evidence during his cross-examination of the detective. During the detective’s cross-examination, trial counsel elicited testimony that an informant had claimed that Boatright was wanted for murder in Texas. In further response, the detective conceded that contrary to the informant’s claim, he did not find any warrants for Boatright in Texas. The detective also testified that although Boatright had been arrested based upon the informant’s claim, he was later released from custody after no warrants were found and the claim could not be substantiated.

Generally, strategic decisions regarding which defense theories to pursue and the manner of conducting cross-examination are within the exclusive province of the attorney after consultation with the client and do not amount to ineffective assistance. See Lupoe v. State, 284 Ga. 576, 579 (3) (e) (669 SE2d 133) (2008). Although the above testimony elicited during trial counsel’s cross-examination placed Boatright’s character in issue, trial counsel explained that he had made a strategic decision to pursue the line of questioning. Trial counsel stated that he introduced the evidence for the purpose of showing that the police had a vendetta against Boatright based upon an unsupported “trumped up” charge. Trial counsel further stated that the information supporting Boatright’s defense theory of a vendetta had been provided by Boatright himself, and that he believed that the benefit of the evidence outweighed the risk of its introduction.

Based upon the foregoing, the trial court was authorized to find that trial counsel’s cross-examination of the detective was part of a valid trial strategy. See Farris, supra, 293 Ga. App. at 678 (3).

That this strategy was ultimately unsuccessful in securing a defense verdict on all charges does not show that trial counsel’s actions were objectively unreasonable. The standard regarding ineffective assistance of counsel is not error-less counsel and not counsel judged ineffective by hindsight[.]

(Citation and punctuation omitted.) Id. at 678-679 (3).

(c) Boatright next contends that trial counsel erroneously failed to impeach a State’s witness with evidence of his prior misdemeanor convictions for theft by receiving stolen property and theft by taking. We discern no error.

Under OCGA § 24-9-84.1 (a) (3), evidence that a witness has been convicted of a misdemeanor crime is admissible for purposes of impeachment if the crime involved dishonesty or making a false statement. Crimes involving dishonesty or false statement that fall within the purview of the statute are limited to

crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused’s propensity to testify truthfully.

(Citation and punctuation omitted.) Clements v. State, 299 Ga. App. 561, 562 (1) (683 SE2d 127) (2009); Adams v. State, 284 Ga. App. 534, 537-538 (3) (644 SE2d 426) (2007) (physical precedent only). Generally, theft is not a crime that necessarily involves dishonesty or making a false statement of the sort contemplated by this statutory subsection. See McClain v. State, 301 Ga. App. 844, 848 (2) (689 SE2d 126) (2010); Clements, supra, 299 Ga. App. at 562-563 (1); Jacobs v. State, 299 Ga. App. 368, 375 (2) (e) (683 SE2d 64) (2009); Adams, supra, 284 Ga. App. at 540 (3). Accordingly, the party seeking to use a misdemeanor theft conviction as impeachment evidence must show that the conviction involved fraud or deceit. Id.

At the motion for new trial hearing, Boatright presented evidence reflecting that the misdemeanor theft convictions were based upon incidents in which the witness had received a stolen license plate for use on his vehicle and had stolen cell phones from a school facility. Significantly, that evidence did not show that the misdemeanor theft convictions involved fraud or deceit within the meaning of OCGA § 24-9-84.1 (a) (3). Consequently, Boatright failed to show that the theft convictions would have been admitted for impeachment purposes at trial. See McClain, supra, 301 Ga. App. at 848-849 (2) (concluding that a prior theft by taking conviction was inadmissible as impeachment evidence); Adams, supra, 284 Ga. App. at 540 (3) (ruling that a prior theft by receiving stolen property conviction was inadmissible for impeachment purposes). It thus follows that trial counsel was not ineffective for failing to present the misdemeanor theft convictions at trial. McClain, supra, 301 Ga. App. at 848-849 (2).

(d) Boatright further contends that trial counsel erred by failing to object when the trial court denied the jury’s request for a transcript of the testimony given by E K., one of the victims. Again, no error has been shown.

The record reflects that during deliberations, the jury sent a note asking for “a copy of [E K.’s] testimony[.]” The trial court denied the jury’s request and instructed them to make their decision based upon the evidence that they had previously heard during trial.

The rule in this state is that the trial judge, in his discretion, may permit the jury[,] at their request[,] to rehear in the defendant’s presence the requested testimony after beginning deliberation. Likewise, the court may also, in its discretion, refuse such a request. Of course, jury requests should not be arbitrarily or capriciously denied.

(Citations and punctuation omitted.) Rutledge v. State, 237 Ga. App. 390, 393 (5) (515 SE2d 1) (1999). See also Davis v. State, 266 Ga. 801, 802-803 (4) (471 SE2d 191) (1996); Lee v. State, 241 Ga. App. 182, 185 (4) (525 SE2d 426) (1999).

In this case, the jury did not specify any portion of E K.’s testimony that they wanted to rehear, but rather asked for a copy of all of her testimony. The record does not reflect that there was a serious disagreement as to the substance of E K.’s testimony or that the testimony had been misstated during the course of trial. Under these circumstances, the trial court was authorized to deny the jury’s request. See Lee, supra, 241 Ga. App. at 185 (4); Rutledge, supra, 237 Ga. App. at 393 (5); Davis, supra, 266 Ga. at 802-803 (1). Compare Scroggins v. State, 237 Ga. App. 122, 125-126 (5) (514 SE2d 252) (1999) (concluding that the trial court abused its discretion in denying the jury’s request to rehear testimony when there had been a serious disagreement regarding whether defense counsel had misstated the evidence in his closing argument and granting the jury’s request would have settled that dispute). Accordingly, the trial court was authorized to deny the jury’s request, and trial counsel was not ineffective for failing to make a meritless objection to the trial court’s decision. See Rutledge, supra, 237 Ga. App. at 393 (5); Jackson v. State, 288 Ga. App. 432, 434 (1) (b) (654 SE2d 232) (2007) (“The failure to make objections which would not have succeeded cannot support a claim of ineffective assistance of counsel.”) (citation omitted).

(e) Boatright also claims that his trial counsel erroneously failed to request a limiting instruction specifying the State’s burden to prove that the child molestation against E K. occurred in the manner alleged in the indictment. He argues that in the absence of the limiting instruction, the jury was permitted to find him guilty of the child molestation offense based upon the evidence describing how the tattooing act occurred, which was contrary to the specific allegation in the indictment. This claim is without merit.

It is axiomatic that, in criminal prosecutions, the court’s instructions must be tailored to fit the charge in the indictment and the evidence adduced at trial. This is particularly true when the offense charged may be committed in one of several ways, but the indictment charges one specific method. . . . Averments in an indictment as to the specific manner in which a crime was committed are not mere surplusage. Such averments must be proved as laid, or the failure to prove the same will amount to a fatal variance and a violation of the defendant’s right to due process of law.

(Citations and punctuation omitted.) Taiton v. State, 254 Ga. App. 111, 112 (1) (561 SE2d 139) (2002). Accordingly, the trial court’s instructions must sufficiently limit the jury’s consideration to the allegations and elements of the offense as charged in the indictment. See Bryant v. State, 249 Ga. App. 383, 384 (1) (547 SE2d 721) (2001). In determining whether a charge contained error, jury instructions must be read and considered as a whole. See Ceasar v. State, 239 Ga. App. 752, 754 (2) (521 SE2d 866) (1999).

In its instructions to the jury, the trial court read the contents of the indictment, including the count charging Boatright with the child molestation of E K. based upon his acts of “getting on the bed next to [E K.], exposing his nude body to [E K.], and rubbing her leg[.]” The trial court further charged that the State had the burden of proving every material allegation in the indictment beyond a reasonable doubt and provided a copy of the indictment to the jury to aid them during their deliberations. As such, the trial court’s jury instructions, as a whole, properly distinguished the acts upon which the child molestation offense was based and limited the jury’s determination of the child molestation offense to those acts set forth in that count of the indictment. See James v. State, 268 Ga. App. 851, 852-853 (1) (602 SE2d 854) (2004); Ceasar, supra, 239 Ga. App. at 754 (2).

2. Lastly, Boatright contends that the trial court erred in denying his motion to sever the offenses. In his motion, Boatright sought to sever the sex offenses involving B. D. from the other offenses involving C. D. and E K. He also sought to sever the tattooing offenses from the sex offenses. Notwithstanding Boatright’s arguments to the contrary, we hold that the trial court did not abuse its discretion in denying the motion.

Severance is required if offenses are joined solely because they are similar in nature. Severance is not mandated, however, where the similarity of the offenses is coupled with evidence of a pattern which shows a common motive, plan, scheme, or bent of mind. Where the modus operandi of the perpetrator is so strikingly alike, that the totality of the facts unerringly demonstrate and designate the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to severance in the interests of justice. Severance in this particular kind of circumstance lies within the sound discretion of the trial judge.

Decided March 8, 2011.

Benjamin D. Goldberg, Michael R. McCarthy, for appellant.

(Citations and punctuation omitted.) Loyless v. State, 210 Ga. App. 693, 695 (3) (436 SE2d 814) (1993).

Here, although the charged sex offenses involved different female victims and occurred on different dates, they all reflected Boatright’s pattern of touching or fondling adolescent females while they were sleeping in Boatright’s home. See Freeman v. State, 202 Ga. App. 185, 188 (7) (413 SE2d 774) (1991); Seidel v. State, 197 Ga. App. 14, 16 (3) (397 SE2d 480) (1990). As argued by the State, all of the sex offenses were similar and showed Boatright’s common motive, plan, scheme, or bent of mind to satisfy his sexual desires. See id. In addition, the circumstances surrounding the tattooing offenses would have been admissible at the trial of the sex offenses to show Boatright’s lustful disposition and bent of mind. See Freeman, supra, 202 Ga. App. at 188 (7). See also Dickerson v. State, 304 Ga. App. 762, 765 (1) (697 SE2d 874) (2010) (concluding that severance was not required since the circumstances related to defendant’s sexual exploitation charges would have been admissible as similar transaction evidence in the trial of defendant’s child molestation and aggravated sexual battery charges); Carroll v. State, 199 Ga. App. 8, 10 (403 SE2d 875) (1991) (“Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying appellant’s motion for severance.”) (citations and punctuation omitted). Therefore, severance was not required.

Moreover, this case was not so complex as to impair the jury’s ability to distinguish the evidence and apply the law intelligently as to each offense. See Loyless, supra, 210 Ga. App. at 695 (3). “Consequently, we conclude that the trial court did not abuse its discretion in denying [Boatright’s] motion to sever and motion for new trial on this basis.” Id.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

       Although Boatright does not challenge the sufficiency of the evidence supporting his convictions, we note that the jury was authorized to find Boatright guilty of the offenses based upon the evidence set forth above. See OCGA §§ 16-5-71 (a); 16-6-4 (a) (1); 16-6-22.2 (b). See also Kolar v. State, 292 Ga. App. 623, 623-625 (1) (665 SE2d 719) (2008); Cheek v. State, 265 Ga. App. 15, 15-16 (1) (593 SE2d 55) (2003). It is true that E K. recanted her prior statements to the detective regarding the molestation incident, and the trial testimony conflicted as to whether A. F. had observed B. D.’s molestation incident. Nevertheless, “[i]t is for the jury!,] and not this Court!,] to resolve conflicts and to assess witness credibility.” (Punctuation and footnote omitted.) Cheek, supra, 265 Ga. App. at 16 (1). The recantation and conflicting evidence did not render the evidence against Boatright insufficient as to the sex offenses. See id.

       Compare Chapman v. State, 202 Ga. App. 267, 268-269 (2) (414 SE2d 240) (1991) (concluding that the trial court erred in denying the defendant’s motion for a mistrial since no remedial action was taken after the prosecutor improperly placed the defendant’s character in evidence by stating that he had a suspended driver’s license). Here, unlike in Chapman, the trial court took action to address the special agent’s fleeting, nonresponsive statements, and trial counsel made a valid strategic decision not to request a mistrial or any further action that would draw attention to the objectionable facts. See Sweet, supra, 278 Ga. at 324 (5); Rivers, supra, 271 Ga. at 118 (2) (b).

       Although Boatright argues that trial counsel should have presented additional evidence to show that the murder accusation itself was false, his argument is without merit. Contrary to Boatright’s claim, trial counsel was not required to delve into further details, which would have placed undue emphasis on the murder accusation and confuse the issues and charges pertinent to the instant case. Significantly, trial counsel’s cross-examination showed that the informant’s claim was unsubstantiated. Accordingly, trial counsel’s cross-examination strategy was not unreasonable in its effort to balance the need to present evidence supporting the defense theory and the need to avoid prejudice to the defense. See Farris, 293 Ga. App. at 678 (3). Compare Emilio v. State, 263 Ga. App. 604, 605-606 (1) (588 SE2d 797) (2003) (concluding that trial counsel’s performance was deficient when he introduced evidence that the defendant had been asked to commit a crime and was wanted in five states, since trial counsel failed to inform the jury that the damaging references in the evidence were false or unsubstantiated).

       In support of his claim, Boatright cites to State v. Lamb, 287 Ga. App. 389, 391-392 (1), (2) (651 SE2d 504) (2007), overruled on other grounds by O’Neal v. State, 285 Ga. 361 (677 SE2d 90) (2009). In Lamb, we held that trial counsel provided ineffective assistance by failing to impeach a witness with her prior convictions for theft and forgery, and that there was a reasonable probability that the failure prejudiced the defense. Id. The Lamb decision did not address whether the prior theft conviction was a felony or a misdemeanor involving fraud or deceit. Id. Nevertheless, since a party cannot be prejudiced by the failure to present inadmissible evidence, implicit in the Lamb holding is that the witness’s prior theft conviction satisfied the requirements of either OCGA § 24-9-84.1 (a) (1) or (3) and would have been admissible as impeachment evidence at trial. Here, Boatright failed to show that the witness’s prior misdemeanor theft convictions would have been admissible as impeachment evidence, and therefore, trial counsel was not ineffective in failing to introduce the convictions at trial. See McClain, supra, 301 Ga. App. at 848-849 (2); Adams, supra, 284 Ga. App. at 540 (3).

       Boatright’s motion to sever was untimely since it was not filed within ten days after the date of arraignment. See OCGA § 17-7-110 (“All pretrial motions . . . shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.”). Nevertheless, the trial court agreed to hear and decide the motion on its merits.


text:
    A10A2142.
    PAUL v. THE STATE.
    (707 SE2d 171)
   Adams, Judge.

A jury convicted Jessie Lamar Paul of one count of riot in a penal institution under OCGA § 16-10-56, and he appeals following the denial of his motion for new trial.

Paul was charged with committing the offense of riot in a penal institution in that on or about October 7, 2005, while legally confined in the Harris County jail, he “did unlawfully act in a violent and tumultuous manner, to-wit: gouging the eye of Ryan Anthony Lett with his, the accused’s, thumb. ...” The evidence at trial showed that Paul and Lett, a jail trustee, began arguing during lunchtime at the jail. The argument led to a “wrestling match.” Lett stated that he and Paul pulled and pushed each other around, but he did not recall that any punches were thrown. His eye was injured during this incident, leaving it red, bloodshot and a little swollen. He was taken to a medical center outside the jail, but he said that the medical personnel there just looked at his eye and did not administer any further treatment.

Corrections Officer John Johnston testified that he was working at the jail that day when he was notified that there was a fight. When Johnston arrived at the scene, he removed Lett from the area and observed that he had a cut on his eye and/or eyelid. Johnston recalled that emergency medical personnel (EMTs) were called. Another corrections officer, Corporal Jacqueline Terry, testified that when she took Lett to get medical treatment at the jail, she observed that he had “a cut over his eye and a little bit of bleeding and it was bruised.” Lett told Terry that Paul’s thumb made contact with his eye. Medical personnel in the jail cleaned Lett’s eye and summoned the EMTs. Afterward, he was placed in a cell to await transportation for further treatment. Later, Paul showed Terry that he had broken his thumb some time ago, so that it now stuck out in one direction. He also asked Terry how Lett looked after the fight.

Sergeant James Bentley, a third corrections officer, testified that he saw Lett on the day of the fight and took photographs of his injuries. Lett told Bentley that Paul’s thumb made contact with his eye. Bentley stated that after a period of time, Lett’s eye worsened until it became “completely swollen shut,” and the area under his eye was “completely blue to black.” Approximately one week later, when he was able to open his eye, it was “completely red for quite a long time.” Lett was transported to another facility for further treatment because the EMTs could observe that his eyelid was cut, but could not tell whether his eye was also cut. Lett was given Neosporin for his eye because stitches were not an option due to the location of the injury. Bentley also saw Paul the day of the fight. Paul asked Bentley and another officer, “Did I put his eye out? Did I swell it shut?” Paul then stated that he “bet” Lett would not talk about Paul’s wife anymore. Bentley also observed Paul’s thumb that day. Paul told Bentley that his thumbnails were a little long and that his thumb had been broken, so that it was a little offset.

1. Paul asserts that the trial court erred in instructing the jury that they could consider the Harris County jail a penal institution. Paul argues that the issue of whether the jail was a penal institution under OCGA § 16-10-56 was for the jury to decide, and thus the trial court violated OCGA § 17-8-57. We agree.

Before trial, Paul’s attorney expressed his willingness to stipulate to the fact that Paul was “legally confined” at the time of this incident, but he “would not be able to say. . . that he was legally confined to a penal institution.” The trial court then admitted a certified copy of the bench warrant for Paul’s arrest as State’s Exhibit 1 in connection with the issue of Paul’s confinement. And on direct examination, Bentley testified that the Harris County jail housed prisoners for pretrial confinement, probation violations and for a short time following a conviction until a prisoner is transferred to another facility. He stated that the jail was a penal institution, without a defense objection. But when the State asked Bentley whether Paul was “in your penal institution, the Harris County Jail,” on October 7, 2005, Paul’s counsel objected to the State’s characterization of the jail as a penal institution. Counsel argued that the State was required to prove and “it is for the jury to determine, whether or not it’s a penal institution, or this Court.” The trial court sent the jury out. After hearing argument on the issue, the trial court determined that the question presented an issue of law for the court and that he was ruling that the jail was a penal institution under the statute. The trial court informed the jury upon their return that he had overruled Paul’s objection and “you may consider the Harris County Jail as a penal institution.”

OCGA § 16-10-56 (a) provides, in pertinent part, that “[a]ny person legally confined to any penal institution of this state or of any political subdivision of this state who commits an . . . act in a violent or tumultuous manner commits the offense of riot in a penal institution.” Thus, to establish this offense as alleged in the indictment, the State was required to show (1) that Paul was legally confined at the time of the incident; (2) that the Harris County jail was a penal institution of a political subdivision of the state; and (3) that Paul committed an act in a violent and tumultuous manner by gouging Lett’s eye with his thumb. Accordingly, whether the jail constituted a penal institution was an element of the offense.

In its order denying Paul’s motion for new trial, the trial court found that it had not violated OCGA § 17-8-57 because its direction to the jury on this issue was not a comment on the evidence, but rather “merely an attempt to clarify the law as it related to the case.” (Punctuation omitted.) Moreover, the trial court asserted that “[t]o violate the statute, the comments must focus on a disputed issue of fact,” and no issue of fact existed as to whether Paul was incarcerated in the Harris County jail.

The trial court’s direction, however, went beyond clarifying the law on a particular issue; it involved applying the law to the evidence to draw a conclusion on an element of the State’s case. We know of no statute that provides, or any appellate decision that holds, that every county jail is a “penal institution” as a matter of law. Compare, e.g., State v. Nejad, 286 Ga. 695, 700 (2) (690 SE2d 846) (2010) (firearm is a deadly weapon as a matter of law). And while the trial court correctly found that a violation of OCGA § 17-8-57 requires a finding that the court commented on a disputed issue of fact, it erred in concluding that no issue of fact existed here. Paul’s counsel certainly contested the issue when he refused to stipulate that Paul was confined in a penal institution. Cf. Jones v. State, 272 Ga. 900, 901-902 (2) (537 SE2d 80) (2000) (venue challenged whenever defendant pleads not guilty to the crime charged). Thus, it was incumbent upon the State to prove that the Harris County jail was a penal institution.

We acknowledge that a trial court possesses latitude in limited circumstances to address the application of the law to the facts in a criminal case. On a motion for directed verdict, for example, the court could determine whether the State had submitted sufficient evidence to justify a finding by the jury that the jail was a penal institution. But the ultimate question of whether the State had properly established that element remains for the jury. See Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002) (discussing venue). See also Smith v. State, 275 Ga. App. 60, 63 (4) (619 SE2d 694) (2005) (trial judge’s explanation of ruling of partial directed verdict as to certain evidence did not constitute improper comment on the remainder of evidence).

Thus, the question of whether the Harris County jail qualified as a penal institution under OCGA § 16-10-56 was properly for the jury, and the trial court violated OCGA § 17-8-57 in determining the issue as a matter of law. See Patel v. State, 282 Ga. 412, 414 (2) (651 SE2d 55) (2007) (trial court’s comment that “[v]enue is proper in Fayette County” was improper expression of opinion on essential element of venue under OCGA § 17-8-57). “In light of the mandatory nature of the statute and the case law interpreting the statute, we must reverse [Paul’s] conviction and remand the case to the trial court for a new trial.” (Citation and punctuation omitted.) Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008).

2. Paul next asserts that the trial court erred in allowing the charge of riot in a penal institution to go to the jury. He asserts that the evidence was insufficient to convict Paul of the offense as alleged in the indictment because the State failed to prove that Paul gouged Lett’s eye.

The term “gouge” is defined in Webster’s New World College Dictionary (2010 ed.), “in fighting [to mean] to push one’s thumb into the eye of.” The American Heritage English Dictionary (4th ed. 2010) defines the term to mean “to thrust one’s thumb into the eye of.” The State presented evidence from which the jury could have concluded that while Paul was wrestling with Lett, Paul’s thumb made contact with Lett’s eye, cutting his eyelid, and perhaps his eye, and resulting in bleeding and bruising around the eye. Lett’s eye was swollen closed for about one week and was red afterward. Additionally, the evidence indicated that Paul was aware that he had hurt Lett with his thumb, as he showed it to several officers, noting its unusual angle and his long fingernail. After the fight, Paul asked Bentley if he had put Lett’s eye out. This evidence was sufficient to allow a jury to conclude that Paul had gouged Lett’s eye as alleged in the indictment.

In addition, the State introduced evidence of Paul’s legal confinement, a fact to which Paul’s counsel was willing to stipulate. And the State’s evidence regarding the prisoners housed at the Harris County jail would have been sufficient for the jury to conclude that it constituted a penal institution within the meaning of OCGA § 16-10-56, and as defined in the jury charge, had the trial court not ruled on that issue as a matter of law. Accordingly, the evidence was sufficient for a reasonable factfinder to find beyond a reasonable doubt that Paul committed the offense of riot in a penal institution. See Burge v. State, 243 Ga. App. 673 (534 SE2d 132) (2000).

3. Paul also asserts that the trial court erred in charging the jury that “[a]ny person legally confined to any penal institution of this state, or of any political subdivision of this state, who did unlawfully act in a violent or tumultuous manner commits the offense of riot in a penal institution.” He asserts that this charge “impermissibly broadened the authorization of the jury to convict him in a manner not alleged in the indictment.”

But the language of the charge merely tracks the relevant portion of the statute. And even if the charge could somehow be interpreted as broadening the jury’s authorization, the trial court also specifically instructed the jury that Paul could not be convicted unless each element of the crime “as charged” was proved beyond a reasonable doubt and that the State bore the burden of proving “every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” Accordingly, considering the charge as a whole, we conclude that the trial court fairly instructed the jury that it could convict Paul only if the State proved its case as charged in the indictment. See Grant v. State, 257 Ga. App. 678, 683 (2) (b) (572 SE2d 38) (2002).

Judgment reversed and case remanded.

Smith, P. J., and Mikell, J., concur.

Decided March 8, 2011.

Bentley C. Adams III, Robert L. Wadkins, for appellant.

Julia Fessenden Slater, District Attorney, Jennifer E. Dunlap, Assistant District Attorney, for appellee.

       Paul was also indicted for aggravated assault in connection with this incident, but the jury acquitted him of that charge.

       OCGA § 17-8-57 states that “ [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.”

       Johnston also testified that the Harris County jail is where people in Harris County go to wait for their trial or go after they are sentenced.

       Quoting Moore v. State, 176 Ga. App. 882, 883 (1) (339 SE2d 271) (1985).

       Citing Smith v. State, 275 Ga. App. 60, 63 (4) (619 SE2d 694) (2005).

        State v. Gardner, 286 Ga. 633, 634-635 (690 SE2d 164) (2010).

       Even though the trial court had already decided the issue, the court, in fact, charged the jury on the meaning of “penal institution” as that term is defined under OCGA § 42-1-5 (a) (3). See n. 10, infra.

       Moreover, the trial court erred in overruling Paul’s objection to Bentley’s testimony characterizing the jail as a penal institution. That objection should have been sustained as the prosecutor’s question sought to have the witness invade the province of the jury. See Shafer u. State, 285 Ga. App. 748, 750 (1) (647 SE2d 274) (2007); Tittle v. McCombs, 129 Ga. App. 148, 149 (4) (199 SE2d 363) (1973).

       Contrary to the trial court’s assertion in its order, an argument under OCGA § 17-8-57 is not subject to waiver, as a violation of the statute “will always constitute ‘plain error.’ ” (Emphasis in original.) State v. Gardner, 286 Ga. at 634. And OCGA § 17-8-57 mandates reversal where an appellate court determines that the trial court violated the statute.

       “Penal institution” is defined under OCGA § 42-1-5 (a) (3) to mean “any place of confinement for persons accused of or convicted of violating a law of this state or an ordinance of a political subdivision of this state.” Although this definition comes from the statute governing use of an inmate for private gain, we find that the trial court properly adopted this definition in charging the jury in connection with the charge of riot in a penal institution.

       We address this issue on appeal, as it may arise in the re-trial of this case.


author: McFadden, Judge.

text:
    A11A0099.
    SMITH v. THE STATE.
    (707 SE2d 175)
   McFadden, Judge.

After a jury trial, Tommy Smith was convicted of possessing cocaine and possessing cocaine with intent to distribute. Smith appeals, arguing that the trial court erred in denying his motion to suppress evidence on the ground that the police did not knock on his home’s door and announce their presence before executing a search warrant that did not contain a “no-knock” provision. The argument is without merit because the existence of exigent circumstances authorized the officers’ no-knock execution of the search warrant. Accordingly, we affirm.

Generally, OCGA § 17-5-27 requires that police “make a good faith attempt to verbally announce their authority and purpose before entering a building to execute a search warrant. [Cits.]” Jackson v. State, 280 Ga. App. 716, 717 (1) (634 SE2d 846) (2006). But “ ‘(c)ompliance with OCGA § 17-5-27 in the execution of a search warrant is not required where the police have a reasonable, good faith belief that forewarning would increase their peril or lead to the immediate destruction of evidence.’ [Cit.]” Id. at 718 (1). “Whether [such exigent] circumstances exist is a question of fact to be determined by the trial court, and the judge’s decision, if supported by any evidence, is to be accepted.” (Citations and punctuation omitted.) Id. In reviewing a trial court’s decision on a motion to suppress, “ ‘we consider all the evidence of record, including evidence introduced at trial.’ [Cit.]” Wilson v. State, 306 Ga. App. 286 (702 SE2d 2) (2010).

In this case, testimony given at the motion to suppress hearing and the trial shows that a police investigator obtained a search warrant for Smith’s house based primarily on information from a confidential source about recent drug sales and activity in the house. On January 27, 2006, the investigator and several other officers went to the back of Smith’s house as three other officers approached the front of the house. The officers at the front saw several people on the porch and repeatedly identified themselves as police officers with a search warrant. The people on the front porch immediately ran into the house. The officers followed them, continued to announce that they were police with a search warrant and ordered the occupants of the house to get on the ground. The occupants ignored the commands and continued running throughout the house. The investigator and other officers at the back of the house heard the announcements and commands made by the officers in front and also heard the people from the porch running into the house. The officers at the back then announced their presence and forced their way into the house through the barricaded back door.

Decided March 8, 2011.

Relying on Poole v. State, 266 Ga. App. 113 (596 SE2d 420) (2004), Smith argues that there were no exigent circumstances justifying the forced entry into the house. In Poole, supra at 117-118 (1), this court held that the evidence did not demonstrate an exigency based solely on the fact that a person inside the residence had looked out of, and then left, a window. As we explained, “[t]o find exigent circumstances in this case would amount to the adoption of a per se rule that once law enforcement officers realize that an occupant of the premises to be searched for drugs has discovered the officers’ presence outside the premises, the notice requirement is excused.” Id. at 119 (1).

But the instant case is materially different from Poole since it does not merely involve a person inside a house looking out a window. Rather, this case is similar to, and controlled by, Jackson v. State, supra. Here, as in Jackson, it was the immediate flight of people from the exterior “back into the residence that concerned officers and distinguishes this case [from Poole].” Id. at 719 (1). As we held in Jackson,

[i]n light of the occupants’ immediate flight upon seeing police, into a residence where police had [confidential information of recent] drug purchases, there was evidence to support the trial court’s ruling that the officers had a reasonable belief that the fleeing occupants may retrieve weapons or may destroy evidence.

Id. Accordingly, the trial court did not err in denying Smith’s motion to suppress. See Boldin v. State, 282 Ga. App. 492, 496 (3) (639 SE2d 522) (2006) (motion to suppress properly denied under exigent circumstances doctrine where officers reasonably believed that defendant would destroy evidence based on his flight into house upon sight of officers).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

Silver & Archibald, Deborah L. Gowen, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V Patterson, Assistant District Attorney, for appellee.


author: Blackwell, Judge.

text:
    A11A0111.
    EZEBUIRO v. THE STATE.
    (707 SE2d 182)
   Blackwell, Judge.

Chinwendu Ezebuiro was tried by jury in Hall County and convicted of robbery by intimidation in violation of OCGA § 16-8-40 (a) (2). Ezebuiro appeals from the judgment of conviction, asserting that the trial court erred when it allowed the victim — a 66-year-old woman who, at the time of the trial, apparently required the help of medical personnel to travel to the courthouse — to testify in rebuttal while seated on an ambulance gurney. Ezebuiro also appeals from her sentence, contending that the trial court did not follow the proper procedures when it required her to make restitution to the victim as a part of her sentence. We see no error and affirm.

Viewed in the light most favorable to the verdict, the record shows that, in January 2009, the victim advertised for someone to help her with light housekeeping and errands. Ezebuiro responded to this advertisement, and the victim made arrangements to interview Ezebuiro. As a part of the interview, Ezebuiro accompanied the victim on her errands, and during the course of the day, Ezebuiro had an opportunity to observe that the victim carried significant amounts of cash in her car.

After the errands were finished, the victim told Ezebuiro that she would contact Ezebuiro later with a decision about the job. Ezebuiro then became agitated and demanded to be paid for the time she had spent that day with the victim. When the victim explained that she had no cash in her house, Ezebuiro and the victim went to the victim’s car, where Ezebuiro grabbed the victim’s arm, turned her around, hit her with the car door, and took $500 cash and $300 in money orders from the car before leaving the scene. The victim contacted law enforcement, and Ezebuiro eventually was arrested and charged with robbery by intimidation and battery of a person aged 65 years or older.

The trial took place over four days, and the evidence was presented on the second and third days. The prosecutor called the victim as a witness on the first day of evidence, and because the victim typically used a wheelchair and apparently could not travel to the courthouse without assistance, the prosecutor’s office made arrangements for a medical transport company to bring the victim and her wheelchair to the courthouse. The trial court permitted the victim to testify while seated in her wheelchair, and Ezebuiro did not object to the jury seeing the victim in a wheelchair.

While investigating the robbery with which Ezebuiro eventually was charged, police investigators interviewed the victim and made an audio recording of the interview. When Ezebuiro was afforded the opportunity to cross-examine the victim on the first day of evidence, her lawyer did not ask the victim about this interview. But the following day, her lawyer played a portion of the audio recording of the interview while examining an investigator. The prosecutor then decided to recall the victim as a rebuttal witness, so that the victim could explain statements that she made during the interview.

When the prosecutor decided to recall the victim in rebuttal, there was not enough time to make arrangements with the same medical transport company to bring the victim again to the courthouse in her wheelchair, and the prosecutor’s office instead asked the Hall County Fire Department to transport the victim to court. Hall County Fire Department paramedics did so, but they could not transport the victim while she was seated in a wheelchair, so they instead brought the victim to court on a gurney. For reasons that are not clear from the record, the paramedics did not bring along the victim’s wheelchair, so that she might be transferred from the gurney to the wheelchair upon her arrival at the courthouse.

The victim testified in rebuttal while seated on the gurney, and Ezebuiro timely objected, claiming that the sight of the victim on a gurney would generate improper sympathy for the victim, perhaps imply that the condition of the victim was worsening, and in any event, prejudice Ezebuiro. The trial court overruled this objection, but it offered to explain to the jury why the victim was seated on a gurney, instead of her wheelchair. Ezebuiro objected, however, to the trial court giving the jury any such explanation.

After the victim testified, Ezebuiro moved for a mistrial. The trial court denied this motion, and the case was submitted to the jury, which returned a verdict of guilty on the robbery charge. The court sentenced Ezebuiro to one year of imprisonment, followed by seven years of probation. As a special condition of her probation, the court ordered Ezebuiro to make restitution in the amount of $800. Ezebuiro now appeals her conviction and the requirement that she make restitution as a special condition of probation.

1. We turn first to the contention that the trial court erred when it permitted the victim to testify while seated on a gurney. It is well settled that a trial court is vested with “considerable discretion in its conduct of court proceedings.” Lonergan v. State, 281 Ga. 637, 640 (4) (641 SE2d 792) (2007). This considerable discretion includes discretion to make reasonable accommodations for the comfort and care of witnesses with special needs. See Williamson v. State, 234 Ga. App. 658, 658-659 (2) (507 SE2d 765) (1998) (finding no abuse of discretion where trial court permitted grandmother to stand near nine-year-old victim of child molestation while he testified). Unless the trial court has abused its wide and considerable discretion, we will not interfere on appeal with the exercise of this discretion. See Lemley v. State, 245 Ga. 350, 353-354 (3) (264 SE2d 881) (1980). We see no abuse of discretion here.

Ezebuiro does not dispute that the victim required the assistance of medical personnel to travel to the courthouse, and we accept that the victim required such assistance. When the prosecutor recalled the victim as a rebuttal witness, the press of time did not allow the prosecutor’s office to make arrangements with the medical transport company that previously had brought the victim to court in her wheelchair. The prosecutor’s office instead relied on the local fire department to bring the victim to the courthouse, and the fire department transported her in the only way it apparently could, on a gurney. It would have been better, of course, if the fire department also had brought along her wheelchair — so that she could be transferred from the gurney to the wheelchair before she entered the courtroom — but it did not. And after Ezebuiro sought a mistrial, the prosecutor testified out of the presence of the jury and explained that she had nothing to do with the decision of the fire department to leave the wheelchair behind.

When the victim arrived in the courtroom on a gurney, late in the afternoon of the last day on which the jury would hear evidence, Ezebuiro objected and tried to force the trial court to choose between allowing the victim to testify from the gurney or disallowing her testimony altogether. Indeed, Ezebuiro presented the trial court with no other alternatives. Ezebuiro did not, for instance, inquire whether paramedics could safely move the victim to a chair or bench in the courtroom before she testified. Ezebuiro also did not ask for a continuance until the next day to allow the prosecutor’s office an opportunity to bring the victim’s wheelchair to court. See Presley v. State, 285 Ga. 270, 274 (674 SE2d 909) (2009) (explaining in a different, but comparable context, that “[w]hen neither the defendant nor the State directs the court’s attention to alternatives, there is no abuse of discretion in the [trial] court’s failure to sua sponte advance its own alternatives”). And when the trial court offered to explain to the jury why the victim was seated on a gurney, Ezebuiro objected to any such explanation. In these circumstances, and given the limited choice to which Ezebuiro put the trial court, we do not think the trial court abused its wide discretion.

2. We also see no merit in the claim that the trial court erred when it required Ezebuiro to make restitution as a special condition of probation. Ezebuiro contends that the trial court failed to follow two procedural requirements for an award of restitution, namely the statutory requirement that the trial court hold a hearing on restitution when there is no agreement on the amount of restitution and a supposed requirement that the trial court enter written findings to justify the award of restitution. We conclude, however, that Ezebuiro has failed to preserve for our review any error with respect to the requirement of a hearing and that Georgia law no longer requires written findings on restitution.

(a) When a dispute exists about the appropriate amount of restitution, OCGA § 17-14-7 (b) calls for a restitution hearing:

If the parties have not agreed on the amount of restitution prior to sentencing, the ordering authority shall set a date for a hearing to determine restitution. Any dispute as to the proper amount or type of restitution shall be resolved by the ordering authority by the preponderance of the evidence. The burden of demonstrating the amount of the loss sustained by a victim as a result of the offense shall be on the [S]tate. The burden of demonstrating the financial resources of the offender . . . and the financial needs of his or her dependents shall be on the offender. . . .

OCGA § 17-14-7 (b). Here, the trial court took up the issue of restitution as a part of its consideration of a proper sentence, immediately following the return of the guilty verdict. Ezebuiro was allowed to offer argument on the issue of restitution, and she did not object to the trial court proceeding to decide the issue of restitution at that time. Nor did she ask for a continuance, ask that a restitution hearing be set for a later date, or state that she had evidence to present on the question of restitution. For these reasons, she has waived any error in the decision of the trial court to decide the question of restitution as a part of the sentencing hearing, rather than in a separate and distinct hearing. See Grant v. State, 289 Ga. App. 230, 236 (5) (656 SE2d 873) (2008) (appellate courts cannot consider questions not presented to or ruled upon by the trial court); Hames v. State, 280 Ga. App. 708, 708 (1) (634 SE2d 836) (2006) (failure to object to trial court’s conduct of proceedings below waives appellate review of the issue).

Decided March 8, 2011

Benjamin A. Davis, Jr., for appellant.

Lee Darragh, District Attorney, Juliet Aldridge, Assistant District Attorney, for appellee.

(b) In McCart v. State, 289 Ga. App. 830 (658 SE2d 465) (2008), we held that, in light of an amendment of the restitution statutes in 2005, a trial court no longer is required, before awarding restitution, to make written findings of fact concerning the factors set out in OCGA § 17-14-10. 289 Ga. App. at 832 (1). Rather, the only requirement is that the restitution order be supported by a preponderance of the evidence. See id.; see also Regent v. State, 306 Ga. App. 616, 620 (3) (703 SE2d 81) (2010); OCGA § 17-14-7 (b). Here, the evidence adduced at trial shows that, in the course of the robbery with which Ezebuiro was charged, Ezebuiro took $500 cash and $300 in money orders from the car of the victim, so the evidence is sufficient to sustain the award of $800 restitution. See Ingram v. State, 262 Ga. App. 304, 308 (4) (c) (585 SE2d 211) (2003) (“In determining what sentence to impose upon a defendant, a trial court may consider any evidence that was properly admitted during the guilt-innocence phase of the trial.”) (citation and emphasis omitted). That the trial court made no written findings on the question of restitution does not amount to reversible error. See In the Interest of E. W, 290 Ga. App. 95, 96 (2) (658 SE2d 854) (2008).

Judgment affirmed.

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

        Cutrer v. State, 287 Ga. 272, 274 (695 SE2d 597) (2010).

       A jury was selected, and opening statements were given, on the first day. Closing arguments and the final charge of the court were given on the fourth day.

       Ezebuiro requested that a photograph of the victim seated on the gurney — which presumably depicts how the victim appeared to the jury on the second day of trial — be made a part of the record, and the trial court agreed. We have reviewed this photograph, and we note that it depicts the victim seated upright on a gurney. A blanket covers the victim’s legs, several pillows are located behind the victim for support, and she is holding a microphone in her lap. The photograph reveals no indications that the victim was in obvious pain, discomfort, or distress.


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    A11A0133.
    AYITEYFIO v. THE STATE.
    (707 SE2d 186)
   McFadden, Judge.

A jury found Robert Ayiteyfio guilty of driving under the influence of alcohol and possessing an open container while operating a vehicle. Ayiteyfio appeals, challenging the sufficiency of the evidence and the admission of several similar transactions at trial. The evidence is sufficient, and there was no error in admitting it. We therefore affirm.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of innocence. See Deering v. State, 244 Ga. App. 30 (535 SE2d 4) (2000). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt. Id. at 30-31.

So viewed, the evidence showed that at approximately 7:20 a.m. on April 20, 2009, a Gwinnett County police officer encountered Ayiteyfio on the side of 1-85 north of Atlanta. Ayiteyfio was sitting in the driver’s seat of a car that had its engine running, but was stopped in a grassy patch located on the other side of the guardrail from the lanes of travel. Ayiteyfio appeared confused and did not initially respond to the officer’s request that he exit his vehicle. When Ayiteyfio eventually got out, he had difficulty standing, walking, and maintaining his balance. He tried to speak, but his words were slurred, and he had red, bloodshot, watery eyes. The officer also detected a strong odor of alcohol on his breath.

Ayiteyfio admitted that he had been drinking the night before, and the officer administered several field sobriety tests, during which Ayiteyfio exhibited numerous indicators of impairment. Based on Ayiteyfio’s performance on those tests, as well as his demeanor and appearance, the officer concluded that he was under the influence of alcohol. He impounded Ayiteyfio’s car, and an inventory search revealed three partially filled bottles of liquor. Ayiteyfio agreed to submit to a chemical breath test on the Intoxilyzer 5000, but began crying when the test began and could not provide a sufficient breath sample.

The State also presented testimony regarding two other DUI incidents involving Ayiteyfio. This evidence showed that on October 8, 2009, just six months after the incident at issue here, an Atlanta police officer stopped Ayiteyfio for speeding on 1-20. When the officer approached Ayiteyfio, he detected a moderate odor of alcohol and noticed that Ayiteyfio’s eyes were bloodshot and watery. Ayiteyfio tested positive for alcohol on the officer’s alco-sensor and admitted that he had been drinking. The officer administered several field sobriety tests to Ayiteyfio, who exhibited evidence of impairment. Although Ayiteyfio agreed to provide a chemical breath sample, he blew insufficient breath into the machine to be tested.

Approximately six weeks later, an off-duty Atlanta police officer saw Ayiteyfio driving the wrong way on 1-20 at 3:20 a.m. Before the officer could take action, Ayiteyfio’s car collided head-on with another vehicle. The officer spoke with Ayiteyfio following the collision and smelled a strong odor of alcohol about his person. He also noticed that Ayiteyfio was groggy, moving slowly, and appeared intoxicated. Another officer who investigated the incident testified that Ayiteyfio smelled of alcohol, had red, glassy eyes, was slurring his words, and was very emotional. The second officer concluded, based on his experience and training, that Ayiteyfio was under the influence of alcohol to the extent he was less safe to drive.

(a) Ayiteyfio first challenges his DUI conviction. In Georgia, “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive.” OCGA § 40-6-391 (a) (1). According to Ayiteyfio, because his car was parked when the police arrived, the evidence did not demonstrate that he drove the car or drove it under the influence of alcohol. We disagree.

“[I]t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence.” (Punctuation omitted.) Deering, supra at 31 (1). The circumstantial evidence here was sufficient. Given Ayiteyfio’s appearance and demeanor at the scene, his performance on the field sobriety tests, and the strong odor of alcohol on his breath, the jury was authorized to find that he was both intoxicated and impaired. Furthermore, the police discovered Ayiteyfio awake, but confused, in the driver’s seat of a running car stopped on the wrong side of a highway guardrail. From this evidence, the jury could reasonably conclude that Ayiteyfio drove his vehicle while under the influence of alcohol to the extent he was less safe to drive, ending up off the roadway in a disoriented state. See Jarriel v. State, 255 Ga. App. 305, 307 (2) (565 SE2d 521) (2002); Deering, supra at 31-32 (1); Johnson v. State, 194 Ga. App. 501 (1) (391 SE2d 132) (1990).

On appeal, Ayiteyfio suggests that the evidence could support other scenarios, such as that he drove to the highway location sober, then consumed alcohol while sitting in his car. To sustain a conviction, however, the circumstantial evidence “need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.” (Punctuation and emphasis omitted.) Deering, supra at 31-32. The jury evidently found Ayitey-fio’s alternative hypotheses implausible, and the evidence supports that finding. See Jarriel, supra; Jenkins v. State, 223 Ga. App. 446, 447 (1) (478 SE2d 143) (1996).

(b) Ayiteyfio also argues that the State did not prove the open container allegation. Pursuant to OCGA § 40-6-253 (b) (1) (B), a person shall not “[p]ossess any open alcoholic beverage container in the passenger area of any motor vehicle which is on the roadway or shoulder of any public highway.” The term “open alcoholic beverage container” includes a bottle that contains alcohol and is open, has a broken seal, or has had a portion of its contents removed. OCGA § 40-6-253 (a) (2).

Challenging his conviction under this provision, Ayiteyfio argues that the State failed to demonstrate that the bottles found in his car actually contained alcohol. The arresting officer, however, testified that police located two partially filled bottles of vodka and one partially filled bottle of tequila in the vehicle. Photographs of the bottles showed them to be labeled vodka and tequila bottles. Given the officer’s testimony, as well as the photographic evidence, the jury was authorized to conclude that the partially-filled bottles held alcohol. See Yates v. State, 263 Ga. App. 29, 30 (1) (587 SE2d 180) (2003).

2. Finally, Ayiteyfio argues that the trial court erred in admitting the similar transaction evidence at trial. He contends that the other incidents were admitted for an improper purpose and were not sufficiently similar to the offense on trial. We find no error.

The trial court instructed the jury that it could consider the similar transaction evidence “for the limited purpose of showing, if it does, [Ayiteyfio’s] bent of mind, scheme, and course of conduct.” These are appropriate purposes for the admission of similar transaction evidence. See Steele v. State, 306 Ga. App. 870, 871 (1) (703 SE2d 5) (2010); Bryant v. State, 304 Ga. App. 755, 758 (3) (697 SE2d 860) (2010).

Moreover, the facts of the other incidents are sufficiently similar to the incident at issue here. As explained by our Supreme Court, other crimes evidence is admissible where there is “sufficient connection or similarity between the independent offenses or acts and the crime charged so proof of the former tends to prove the latter.” (Punctuation omitted.) Whitehead v. State, 287 Ga. 242, 249 (3) (695 SE2d 255) (2010). And in the DUI context,

[e]vidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

(Punctuation omitted.) Caraway v. State, 286 Ga. App. 592, 596 (4) (649 SE2d 758) (2007).

The State offered evidence that within seven months of the incident on trial, Ayiteyfio drove his vehicle twice while under the influence of alcohol to the extent it was less safe for him to drive. Such evidence was relevant to Ayiteyfio’s bent of mind and course of conduct with respect to driving while intoxicated. It does not matter that the two incidents occurred after his April 20, 2009 arrest; they were sufficiently connected to the charged crime. See Whitehead, supra (same “test applies whether the similar transaction occurred before or, as here, after the charged crimes”); Caraway, supra (admitting evidence that defendant drove while under the influence shortly before trial on a pending DUI charge). The trial court, therefore, properly exercised its discretion in admitting the evidence. See Whitehead, supra (admission of similar transaction evidence will be upheld absent abuse of discretion).

Decided March 8, 2011.

Tony L. Axam, for appellant.

Rosanna M. Szabo, Solicitor-General, Erica K. Dove, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A0191.
    HERVEY v. THE STATE.
    (707 SE2d 189)
   McFadden, Judge.

Eugenio Arturo Hervey was convicted of violating a family violence protective order and of criminal attempt to commit aggravated stalking. He appeals his conviction of criminal attempt to commit aggravated stalking. He argues that the evidence did not show a pattern of harassing and intimidating behavior as required by the aggravated stalking statute, OCGA § 16-5-91 (a). Because the evidence was sufficient to establish a pattern of harassing and intimidating behavior, we affirm the conviction.

Hervey was indicted for criminal attempt to commit aggravated stalking by going to his children’s school on March 3, 2008, in violation of a family violence protective order. The indictment also alleged a violation of the protective order itself. After a jury returned a guilty verdict on both counts, the trial court merged the convictions and sentenced Hervey to serve five years in confinement. The court denied Hervey’s motion for new trial, and he filed this appeal.

When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that Hervey and Ingrid Hervey were married and had two children. The Herveys divorced in 2006. The divorce was contentious, and Ms. Hervey sought court and police protection on multiple occasions. Hervey repeatedly followed Ms. Hervey. He threatened many times to take the children to Panama, his home country, so that Ms. Hervey would never see them again.

The Herveys entered a consent, 12-month family violence protective order on March 5, 2007. On February 29, 2008, the court entered a permanent family violence protective order that, among other things, ordered Hervey to stay away from the children’s school. Ms. Hervey gave the order to the school that afternoon when she picked up the children.

At lunchtime on March 3, 2008, the Monday following the entry of the protective order, Hervey went to the children’s school to have lunch with them. Because of the protective order, the assistant principal told Hervey that he could not have lunch with the children and that he had to leave. The school administrative assistant called Ms. Hervey, who came to the school. When Ms. Hervey arrived, she was shaking, crying, and very upset. She testified that she was upset because of Hervey’s prior threats to take the children to Panama.

OCGA § 16-5-91 (a) defines aggravated stalking as when a “person, in violation of a . . . permanent protective order . . . follows, places under surveillance, or contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating the other person.” Although the aggravated stalking statute does not define “harassing and intimidating,” the phrase is defined in the simple stalking statute, OCGA § 16-5-90 (a) (1). See State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010). That statute defines “harassing and intimidating” as “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family.” OCGA § 16-5-90 (a) (1).

Hervey contends that the evidence showed only a single violation of the protective order, which was legally insufficient to establish the required pattern of harassing and intimidating behavior. See State v. Burke, supra at 379 (court rejected state’s argument that it need only prove a single violation of a protective order to establish aggravated stalking). On the contrary, Ms. Hervey testified that “many times” Hervey threatened to take the children to Panama so she would never see them again. Although she did not testify about the details of the threats, “[t]he jurors are the judges of credibility and weight of the evidence; they see and hear the witnesses and are better qualified to judge the reasonableness of a hypothesis or a doubt than the appellate court.” Gentry v. State, 215 Ga. App. 270 (1) (450 SE2d 304) (1994).

Decided March 8, 2011.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Ms. Hervey’s testimony about the repeated threats, coupled with the violation of the protective order, was sufficient evidence for the jury to find that Hervey’s behavior was harassing and intimidating. See Daker v. Williams, 279 Ga. 782, 785 (621 SE2d 449) (2005) (“[T]wo related instances of stalking behavior . . . evinced a pattern of prohibited behavior criminalized by the [stalking] statutes.”) (emphasis supplied); Davidson v. State, 295 Ga. App. 702 (673 SE2d 91) (2009) (defendant’s telephone call to victim in violation of probation condition prohibiting any contact coupled with his history of threats and actions that pre-dated the probation condition showed harassing and intimidating behavior sufficient to support aggravated stalking conviction). Consequently, viewed in the light most favorable to the jury’s verdict, the evidence was sufficient to support the conviction of attempted aggravated stalking. See Jackson v. Virginia, supra.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.