text:
    A12A2414.
    CRIDER v. THE STATE.
    (737 SE2d 344)
   Boggs, Judge.

Terri Crider appeals from her convictions for driving under the influence (less safe and per se) and failure to maintain a lane, contending the trial court erred by denying her motion to suppress. She asserts that she was in custody and entitled to Miranda warnings at the time she was interrogated by the police and asked to perform field sobriety tests. We find no merit in the assertion and therefore affirm.

When we review a trial court’s decision on [motions to suppress] evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citation and punctuation omitted.) Teele v. State, 319 Ga. App. 448, 452 (2) (738 SE2d 277) (2012). So viewed, the record shows that a patrol officer saw a SUV driven by Crider weave within its lane and cross the fog line several times. He activated his emergency lights and stopped Crider. When he first talked with her, he noticed that a strong odor of alcoholic beverage was coming from her breath, that her eyes were bloodshot and glassy, and that her speech was “somewhat slurred.” When he asked if she had been drinking, she stated that she had tried to call a taxi, “but it was going to take too long.” When he asked her again if she had been drinking, she acknowledged that she had consumed three beers and a couple of shots.

After asking Crider to step outside of the SUV, the officer asked her if she believed that she was safe to drive and she responded “no, she was not safe to be driving.” The officer testified that when he asked her to voluntarily perform some field sobriety evaluations, “[s]he stated that if I was going to give her a DUI, just to go ahead and take her to jail.” He then asked her “if she minded if [he] just checked out her eyes and she agreed.” After completing the HGN test, the officer asked Crider to perform the walk and turn test, and she agreed. Crider also agreed to participate in a portable roadside breath evaluation. Following the completion of these three field sobriety tests, the officer arrested Crider.

At no time before the completion of the field sobriety tests did the officer tell Crider she was under arrest, place her in handcuffs, or place her in the back of his patrol vehicle. During cross-examination, the officer explained that he does not automatically arrest every driver who admits to being a less safe driver. Instead, he waits until his investigation, including the administration of field sobriety tests, is complete. He recalled two occasions in which he did not arrest drivers following their satisfactory performance of field sobriety tests even though they had acknowledged being less safe to drive. Instead, he required them to wait by the side of the road until someone could pick them up. With regard to Crider, he explained that she was not free to go until after he completed the field sobriety tests because he “had a responsibility to make sure that she didn’t get back behind the wheel.”

Crider contends that she was entitled to Miranda warnings after she admitted to the officer that she had been drinking and was not safe to drive. She argues that “no reasonable person knowing what Ms. Crider knew (she had been drinking) and saying what Ms. Crider said (she should not have been driving)” would believe “they were free to go.” We find no merit in this argument based upon application of the correct legal standard for evaluation of whether a DUI suspect is in custody and entitled to Miranda warnings.

As a general rule, Miranda warnings are not required while an investigating officer conducts preliminary questioning or field sobriety tests; however, after a DUI suspect is arrested, Miranda warnings must precede further field sobriety tests in order for evidence of the results to be admissible.

Decided January 17, 2013.

Richard D. C. Schrade, Jr., for appellant.

(Citation and punctuation omitted; emphasis in original.) State v. Pierce, 266 Ga. App. 233, 235 (1) (596 SE2d 725) (2004). The test for determining whether a suspect is under arrest “is whether a ‘reasonable person in the suspect’s position would have thought the detention would not be temporary.’ ” (Citations, punctuation and footnote omitted.) Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998). “A reasonable person has been defined as one neither guilty of criminal conduct and thus overly apprehensive nor insensitive to the seriousness of the circumstances.” (Citation omitted.) Turner v. State, 233 Ga. App. 413, 415 (1) (a) (504 SE2d 229) (1998). And,

[a]bsent the officer making any statement that would cause ' a reasonable person to believe that he was under arrest and not temporarily detained during an investigation, the officer’s “belief” that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe he was under arrest.

(Citation and punctuation omitted.) Pierce, supra, 266 Ga. App. at 235 (1). Finally, “whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.” (Citation and punctuation omitted.) DiMauro v. State, 310 Ga. App. 526, 528 (1) (714 SE2d 105) (2011).

In this case, the officer never told Crider that she was under arrest or that he planned to arrest her. Nor did he place her in handcuffs or the back of his patrol car. He declined her invitation to immediately take her to jail, and instead continued his preliminary investigation to determine whether an arrest was warranted. These facts and circumstances are “insufficient to cause a reasonable person to believe that [her] detention would not be temporary.” Pierce, supra, 266 Ga. App. at 236 (1). See also Clark v. State, 289 Ga. App. 884, 885-886 (2) (658 SE2d 372) (2008) (suspect who admitted consuming alcohol under temporary detention for investigation); State v. Picot, 255 Ga. App. 513, 515-516 (2) (565 SE2d 865) (2002) (DUI suspect not under arrest before field sobriety tests even though officer had probable cause to arrest for driving on a suspended license). We therefore affirm the trial court’s denial of Crider’s motion to suppress.

Judgment affirmed.

Doyle, P. J., and Andrews, P. J., concur.

John A. Pipkin III, Solicitor-General, Brian M. Johnston, Assistant Solicitor-General, for appellee.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A2277.
    A12A2278.
    A12A2279.
    ROBERTSON v. RIDGE ENVIRONMENTAL, LLC. ROBERTSON, JR. v. RIDGE ENVIRONMENTAL, LLC. C & H QUALITY HOMES, INC. v. RIDGE ENVIRONMENTAL, LLC.
    (737 SE2d 578)
   DOYLE, Presiding Judge.

These related appeals stem from three petitions for declaratory judgments filed by Clay Robertson, G. Edward Robertson, Jr., and C & H Quality Homes, Inc. (collectively “the Petitioners”), asking the trial court to declare unenforceable certain mechanics liens filed by Ridge Environmental, LLC (“Ridge”) against property owned by the Petitioners. The petitions alleged that Ridge had failed to commence an action to collect the liens within the applicable statutory period, rendering the liens unenforceable. The trial court dismissed the petitions, and we now affirm for the reasons that follow.

The record shows that Ridge filed seven claims of lien against the Petitioners’ property on December 21, 2005, for work related to clearing the Petitioners’ property. In the claim of lien filed against Clay Robertson’s property, Ridge stated that the lien was claimed “as satisfaction of a claim which became due and payable on November 11,2005, for materials furnished at the request of Clay Robertson.” In the three claims of lien filed against Edward Robertson, Jr.’s properties, Ridge stated that the liens were claimed “as satisfaction of a claim which became due and payable on November 11, 2005, for materials furnished at the request of Clay Robertson and G. Edward Robertson, Jr.” And in the three claims of lien filed against C & H’s properties, Ridge stated that the liens were claimed “as satisfaction of a claim which became due and payable on November 11, 2005, for materials furnished at the request of Clay Robertson and C & H Quality Homes, Inc.” Each claim of lien stated the amount claimed against each owner and listed a description of the property at issue.

In March 2006, the Petitioners claimed to have filed cash bonds with the superior court clerk in order to discharge the liens, and in February 2011, the Petitioners filed the instant petitions for declaratory judgment asking the trial court to declare the liens unenforceable for Ridge’s failure to commence actions to collect the liens within the statutorily required time period. Ridge answered, claiming that the Petitioners’ actions should be dismissed because Ridge had filed a counterclaim against B. Kay Builders in an action by B. Kay Builders against Ridge filed in Richmond County in 2006 (within one year of Ridge’s filing of the liens). Ridge contended that B. Kay Builders was the contractor for whom the work on the Petitioners’ property had been performed, and that by counterclaiming against B. Kay Builders, Ridge had fulfilled the statutory requirement to file suit for recovery of its lien claims pursuant to OCGA § 44-14-361.1 (a) (3). Ridge later amended its motions to dismiss to include copies of a consent judgment reached in the Richmond County matter in which B. Kay Builders consented to a judgment of $45,000 and agreed to the release of $16,056.25 in cash bonds filed to release liens filed against it by Ridge.

The trial court granted Ridge’s motions to dismiss the petitions, finding that Ridge had perfected its liens against the Petitioners by virtue of filing counterclaims against B. Kay Builders in Richmond County within the statutory period of OCGA § 44-14-361.1 (a) (3) for commencing actions. The trial court then dismissed the Petitioners’ claims for declaratory judgment and allowed Ridge’s counterclaims to proceed. These interlocutory appeals of the trial court’s dismissal orders followed.

Because “the trial court considered matters outside the pleadings, the motion to dismiss was converted to one for summary judgment[,]” which is properly granted “when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

1. The Petitioners first argue that the trial court erred by ignoring this Court’s ruling in Brockett Road Apartments v. Ga. Pacific Corp., which the Petitioners claim supports their contentions that the liens were not perfected in this case. We disagree.

OCGA § 44-14-361.1 prescribes in pertinent part the statutory procedure for filing a materialmen’s lien; this statute is in derogation of the common law and must be strictly construed. . . . The filing for record of a claim of a materialmen’s lien shall be in substance as provided in OCGA § 44-14-361.1 (a) (2); thus, the filing of a claim of lien need not be identical in content to the form prescribed in this subsection.

As stated in OCGA § 44-14-361.1, the claim of lien

shallbe in substance as follows: A.B., a mechanic, contractor, subcontractor, materialman, machinist, manufacturer, registered architect, registered forester, registered land surveyor, registered professional engineer, or other person (as the case may be) claims a lien in the amount of (specify the amount claimed) on the house, factory, mill, machinery, or railroad (as the case may be) and the premises or real estate on which it is erected or built, of C.D. (describing the houses, premises, real estate, or railroad), for satisfaction of a claim which became due on (specify the date the claim was due, which is the same as the last date the labor, services, or materials were supplied to the premises) for building, repairing, improving, or furnishing material (or whatever the claim may be).

Thereafter, in order to perfect the lien against the property, the party must file within 365 days an action to recover the amount of the party’s claim of lien.

The Petitioners contend that because Ridge failed in its claims of liens to state that it furnished materials to B. Kay Builders and instead claimed that the lien was filed “as satisfaction of a claim which became due and payable on November 11, 2005, for materials furnished at the request of Clay Robertson,” Ridge’s attempt to recover the debt from B. Kay Builders did not act to perfect the claims of liens under OCGA § 44-14-361.1 (a) (3). The Petitioners point to Brockett Road in which this Court addressed a petition to collect on a lien filed against the owner of property, which petition included an attached claim of lien alleging in the claim of lien that the plaintiff furnished materials “to Piedmont Engineering & Construction, a contractor or builder for improving the property of the said Brockett Road Apartments, Ltd.” This Court held that the plaintiff could not collect on the lien because the plaintiff failed to file a suit against Piedmont Engineering & Construction within one year of filing the claim of lien against the property owner and that a suit the plaintiff filed against T. C. Contractors, Inc., was insufficient to perfect the claim of lien.* Although there are similarities to this case, Brockett Road does not require the result sought by the Petitioners.

Here, it is undisputed that B. Kay Builders was the named contractor overseeing the work completed by Ridge. Furthermore, within one year of filing the claims of liens at issue, Ridge filed counterclaims against B. Kay Builders to recover the debts at issue. So the question becomes whether the trial court was required to declare invalid the liens at issue based on Ridge’s failure to name the contractor in the lien and its act of naming the property owner or owners as those at the direction of whom the materials were furnished. We hold that it did not.

The plain language of the lien statute does not require that the contractor’s name be included in the claim of lien. Ridge’s claims of liens included statements that the liens were against specific properties for materials furnished to the respective property owner or owners, and at no point in the claims of liens did Ridge describe the owners as contractors. The claim of lien at issue in the Brockett Road case defined Piedmont Engineering & Construction as the contractor or builder to which the materials were furnished. When the claim of lien in Brockett Road was attached to the plaintiff’s pleading, the statements in the claim became factual allegations that had to be proven by the plaintiff. The plaintiff alleged that Piedmont Engineering & Construction was the contractor related to the debt and therefore was required to establish that it had filed suit within one year to collect the debt against that entity in order to perfect the claim of lien prior to filing suit against the property owner. In this case, however, the language of the claims of liens does not serve as factual allegations that the Petitioners were the contractors because there is no language within the claims describing the Petitioners as such. Accordingly, Brockett Road does not demand reversal of the trial court’s dismissal order.

Decided January 18, 2013.

John P. Joiner, for appellant.

John M. Brown, for appellee.

2. The Petitioners also argue that the trial court erred by treating the Richmond County consent judgment as res judicata regarding disputed issues in these actions.

In its order, the trial court cited to the consent judgment entered in the Richmond County action between B. Kay Builders and Ridge while explaining that Ridge had met the requirement of OCGA § 44-14-361.1 (a) (3) to first pursue its debt claims against the contractor before proceeding against the property owner. The Petitioners contend that because they were not parties to that action, any finding based on the action is not binding against them. Nevertheless, the trial court simply took notice of the finality of the Richmond County action, which by its existence established that Ridge fulfilled necessary steps to proceed against the Petitioners. Moreover, the trial court’s finding that B. Kay Builders acted afe the contractor in the transactions at issue in these cases is supported by the undisputed evidence presented by Ridge. Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews, R J., and Boggs, J., concur.

       Three claims of lien each were filed against C & H Quality Homes and Edward Robertson, Jr., and one claim of lien was filed against Clay Robertson.

       (Punctuation and footnote omitted.) Ford v. Caffrey, 293 Ga. App. 269, 270 (666 SE2d 623) (2008).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       138 Ga. App. 198 (225 SE2d 771) (1976).

       (Citations and punctuation omitted.) Mull v. Mickey’s Lumber & Supply Co., 218 Ga. App. 343, 345 (2) (461 SE2d 270) (1995).

       (Punctuation omitted.) OCGA § 44-14-361.1 (a) (2).

       See OCGA § 44-14-361.1 (a) (3).

       The Petitioners’ arguments also refer to the claims of liens filed against properties owned hy Edward or C & H in which Ridge stated the materials were furnished at the request of “G. Edward Robertson and Clay Robertson” or at the request of “C & H Quality Homes and Clay Robertson.”

       138 Ga. App. at 198.

       (Emphasis in original.) Id. at 198-199.

       Id. It is unclear from the facts provided in Brockett Road why the claim of lien named Piedmont Engineering “as the contractor or builder” rather than T. C. Contractors. See id. at 198.

       See OCGA § 44-14-361.1 (a) (2).

       Compare with Brockett Road, 138 Ga. App. at 198 (“material furnished to Piedmont Engineering & Construction, a contractor or builder . . .”) (emphasis omitted and supplied).

       Id. at 199-200. See also SAKS Assocs. v. Southeast Culvert, 282 Ga. App. 359, 362 (1) (638 SE2d 799) (2006).


author: Ellington, Chief Judge. BRANCH, Judge,

text:
    A13A0963.
    In the Interest of Jane Doe.
    (737 SE2d 581)
   Ellington, Chief Judge.

In this case, a 17-year-old girl petitioned a juvenile court under the Parental Notification Act (“the Act”), OCGA § 15-11-110 et seq., for a waiver of the parental notification required before an unemancipated minor may have an abortion. See OCGA §§ 15-11-112 (b); 15-11-114 (c). The juvenile court held a hearing and thereafter issued an order denying the petition. The appellant filed the instant appeal. Because we find that the appellant was entitled to a waiver of the notification requirement for the reasons explained below, we reverse.

Generally, the Act prohibits physicians and other persons from performing abortions upon unemancipated minors under the age of 18 unless (1) the minor is accompanied by a lawful parent or guardian who acknowledges having been notified of the abortion; (2) the physician or the physician’s agent gives 24 hours actual notice in person or by telephone to a parent or guardian; or (3) the physician or the physician’s agent gives written notice to a parent or guardian by a specified form of certified mail. OCGA § 15-11-112 (a) (1). The minor also must sign a consent form. OCGA § 15-11-112 (a) (2). The minor, however, is authorized to seek a waiver of the notification requirement from any juvenile court in the state. OCGA § 15-11-112 (b). No abortion shall be performed without the required notice or a waiver of that requirement. OCGA § 15-11-112 (c).

Following a hearing, a juvenile court shall waive the notification requirements of OCGA § 15-11-112 (a) (1) if the court finds either

(1) That the unemancipated minor is mature enough and well enough informed to make the abortion decision in consultation with her physician, independently of the wishes of such minor’s parent or guardian; or
(2) That the notice to a parent or, if the minor is subject to guardianship, the legal guardian pursuant to Code Section 15-11-112 would not be in the best interests of the minor.

OCGA § 15-11-114 (c). See also In the Interest of E. H., 240 Ga. App. 91 (524 SE2d 2) (1999). Finally, OCGA § 15-11-114 (d) provides, in part:

. . . The juvenile court shall render its decision within 24 hours of the conclusion of the hearing and a certified copy of same shall be furnished immediately to the minor. If the juvenile court fails to render its decision within 24 hours after the conclusion of the hearing, then the petition shall be deemed granted. []

In this case, the appellant filed her petition on January 2, 2013, and the court conducted a hearing on January 4. On January 7, the court issued an order denying the appellant’s petition.

1. On appeal from the court’s order, the appellant challenges the court’s order on the merits, asserting that it was not supported by the evidence presented. The appellant also contends the petition should be deemed granted because the court did not render a decision within 24 hours.

It is unnecessary to reach the merits of this case because the record clearly shows that the court failed to comply with the statutory mandate that it render its decision and provide a certified copy of the order to the minor within 24 hours of the conclusion of the hearing, pursuant to OCGA § 15-11-114 (d). Although the January 4, 2013 hearing was conducted on a Friday, the statute includes no provision allowing the court to delay its ruling on the petition beyond 24 hours in order to accommodate an intervening weekend or holiday. The statute does not use vague language to describe the applicable time period, such as “one day” or “by the end of the next business day”; instead, it specifically states “within 24 hours of the conclusion of the hearing.” Id.

In contrast, OCGA § 15-11-113 specifically provides, in relevant part, that “[t]he hearing [regarding a notification waiver petition] shall be held within three days of the date of filing [of the petition], excluding Saturdays, Sundays, and holidays.” (Emphasis supplied.) Thus, with the aid of two well-known and related principles of statutory construction—expressio unius est exclusio alterius (expression of one thing implies exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded) — we conclude that the General Assembly’s failure to specifically state that the juvenile court’s 24-hour time period for issuing an order on the petition excluded Saturdays, Sundays, and holidays, demonstrates its intention to provide that the 24-hour time period under OCGA § 15-11-114 (d) shall not be expanded. See generally Hammock v. State, 277 Ga. 612, 615 (3) (592 SE2d 415) (2004).

Moreover, this conclusion is consistent with the General Assembly’s adoption of OCGA § 15-11-114 (b), which specifically provides that “[a] 11 court proceedings under this Code section... shall be given such precedence over other pending matters as is necessary to ensure that a decision is reached by the court as expeditiously as is possible under the circumstances of the case.” (Emphasis supplied.) See also OCGA §§ 15-11-113; 15-11-114 (d), (e); Court of Appeals Rule 45; Uniform Juvenile Court Rule 23.4.

Accordingly, because the juvenile court failed to issue its order within the mandatory 24-hour time period, the petition must be deemed granted as a matter of law. OCGA § 15-11-114 (d). Consequently, the court’s subsequent order denying the petition was void ab initio and must be reversed. Upon remittitur, the clerk of the juvenile court shall issue instanter a certified Parental Notification Certificate, pursuant to Uniform Juvenile Court Rule 3.8.

2. We also note that the trial court’s final order required the appellant to demonstrate that she was entitled to a waiver under the Act by “clear and convincing” evidence. The Act imposes no such burden of proof. See OCGA § 15-11-114. Although a petitioner must present evidence in support of the grounds asserted in the petition, the statute does not require a quantum of proof greater than a preponderance of the evidence.

The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication. . . . [I]n any given proceeding, the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.

(Citations and punctuation omitted.) Santosky v. Kramer, 455 U. S. 745, 754-755 (II) (102 SC 1388, 71 LE2d 599) (1982). In this case, there are no opposing litigants in the traditional sense. This is an ex parte procedure by which a juvenile court judge, in the exercise of his or her discretion, addresses statutory requirements that may be resolved by examining the petitioner. The issue before the court is not whether the petitioner should have an abortion or whether her doctors gave her competent advice, and the court is not asked to weigh the societal interests at stake concerning the propriety, legality, or morality of abortions generally. Rather, the issues are much narrower and concern either the petitioner’s ability to make a decision to have an abortion independently of her parents or whether it is in the best interest of the petitioner to make that decision without the knowledge of her parents or legal guardians. See OCGA § 15-11-114 (c). Because the juvenile court is not tasked with balancing any broader societal interests, we find no basis for imposing a heightened “clear and convincing” standard of proof. Cf. In the Interest of D. W., 300 Ga. App. 438, 441 (1) (685 SE2d 311) (2009) (In termination of parental rights cases, the high value society places on safeguarding the integrity of the family justifies application of the clear and convincing standard.). Rather, under these circumstances, we conclude that the application of a “preponderance of the evidence” standard is appropriate and satisfies the relevant concerns. See, e.g., In the Interest of J. N., 302 Ga. App. 631, 636-637 (2) (691 SE2d 396) (2010) (Where a finding of deprivation has led to the. loss of a parent’s custody, subsequent rulings on that parent’s request for custody modification are made pursuant to a preponderance of the evidence standard.).

Decided January 18, 2013.

Richard T. Tebeau III, for appellant.

Andress & Erwin, Lindsay B. Erwin, for appellee.

Judgment reversed.

Phipps, P. J., concurs. Branch, J., concurs specially.

BRANCH, Judge,

concurring specially.

I concur fully in Division 1 because the juvenile court failed to render its decision within 24 hours of the conclusion of the hearing and, therefore, by the clear language of the statute, the petition “shall be deemed granted.” OCGA § 15-11-114 (d). I cannot join the majority in Division 2, however, because appellant did not enumerate the juvenile court’s application of an improper standard of proof as error. For this reason, I concur in judgment only as to Division 2, which cannot be cited as binding precedent. See Court of Appeals Rule 33 (a).

       Under the Act, the minor is entitled to an expedited appeal “completely preserving the anonymity of the parties” under rules issued by this Court. OCGA § 15-11-114 (e). See also Court of Appeals Rule 45 (b), (d), (e), (j). Hence the minor will be referred to as “the appellant” or “Jane Doe,” and this case is styled accordingly. Cf. In re Jane Doe, 262 Ga. 389 (418 SE2d 3) (1992) (using the name “Jane Doe” in a different context involving a terminally ill child).

       See Uniform Juvenile Court Rule 23.6 (“Upon conclusion of the hearing . . . , the court shall issue a written order stating specific factual findings and legal conclusions supporting its decision.... The court shall prepare a certified copy of the order which shall be furnished only to the unemancipated minor, her attorney or next friend within 24 hours of the hearing. In the event that no hearing is held or more than 24 hours have elapsed since the time of the hearing and the court has not entered an order, the unemancipated minor may request the Clerk of Court to issue a certificate indicating such.”); see also Uniform Juvenile Court Rule 3.8 (providing form JUV-30, the form to be issued when a hearing is held but no decision is rendered within 24 hours).


author: Dillard, Judge.

text:
    A12A1993.
    In the Interest of M. A. I., a child.
    (737 SE2d 585)
   Dillard, Judge.

M. A. I., a child, appeals the juvenile court’s order extending his probation for a period of two years after he repeatedly failed to complete conditions of same. On appeal, he argues that (1) the juvenile court erred by refusing to give him credit for time served in regional youth detention centers; (2) the juvenile court failed to make treatment and rehabilitative efforts; and (3) the juvenile court’s orders made it impossible to complete the terms of probation without issuing an extension. For the reasons set forth infra, we affirm.

The record reflects that following an adjudication of delinquency for possessing an imitation controlled substance with the intent to distribute, the juvenile court issued an order of disposition against M. A. I. on March 18, 2010, finding that commitment was not necessary at that time and placing him on probation subject to certain terms and conditions. One such condition required M. A. I. to attend a special evening reporting program for 60 to 75 days. But over the course of the next two years, M. A. I. repeatedly violated the terms of his probation, resulting in adjudications of delinquency for same and the imposition of additional conditions to the original March 2010 order. These additional conditions included periods of short-term detainment by the Department of Juvenile Justice, referrals for psychological evaluation, orders for counseling, and an increase in the number of days that M. A. I. was required to report to the evening program. On March 16, 2012, pursuant to a motion to extend probation based on M. A. I.’s failure to complete all conditions of probation, the juvenile court extended the period of probation for an additional two years. This appeal by M. A. I. follows.

1. M. A. I. first argues that the juvenile court erred by failing to give him credit for time he served in regional youth detention centers prior to the court’s adjudications of delinquency for violating the terms of his probation. Specifically, M. A. I. takes issue with the juvenile court’s orders from June 13, 2011, and August 2, 2011, arguing that the court ordered him to serve more than 30 days in detention in violation of OCGA § 15-11-66. We disagree.

In support of his argument, M. A. I. first directs us to our General Assembly’s 2010 amendment to OCGA § 17-10-11, which provides that

[e]ach person convicted of a crime in this state shall be given full credit for each day spent in confinement awaiting trial and for each day spent in confinement, in connection with and resulting from a court order entered in the criminal proceedings for which sentence was imposed, in any institution or facility for treatment or examination of a physical or mental disability.

Subsection (b) provides that this Code section “applies to sentences for all crimes, whether classified as violations, misdemeanors, or felonies, and to all courts having criminal jurisdiction located within the boundaries of this state.” And in 2010, the General Assembly struck from subsection (b) language that excepted juvenile courts. Thus, M. A. I. argues that this amendment resolved a conflict between OCGA § 17-10-11 and OCGA § 15-11-66.

As to the latter Code section, OCGA § 15-11-66, it was also amended in 2010 in the same act that amended OCGA § 17-10-11. Although M. A. I.’s argument on appeal makes reference to OCGA § 15-11-66 as codified after the 2010 amendment, the amendment did not become effective until July 1, 2010—over three months after M. A. I. was placed on probation. And the amending act makes clear that “Sections 2 and 5 . . . shall apply to any child sentenced to probation on and after July 1, 2010; the former provisions of Code Section 15-11-66 shall continue to apply to any child sentenced to probation prior to July 1, 2010.” Accordingly, because M. A. I. was placed on probation in March 2010 (before July 1, 2010), the prior version of OCGA § 15-11-66 applies to M. A. I. And at that time, OCGA § 15-11-66 (b) (1) provided that if a child was adjudicated for the commission of a delinquent act, the court could,

in its discretion in those cases involving: ... a violation of probation involving another adjudicated delinquent act and upon the court making a finding of fact that the child has failed to respond to the graduated alternative sanctions set forth in paragraph (2) of this subsection . . . order the child to serve up to a maximum of 30 days in a youth development center, or after assessment and with the court’s approval, in a treatment program provided by the Department of Juvenile Justice or the juvenile court. A child ordered to a youth development center under this paragraph and detained in a secured facility pending placement in the youth development center shall be given credit for time served in the secured facility awaiting placement. .

Applying this language to the orders at issue, as to the June 2011 order, the plain language of the statute makes clear that M. A. I. was not entitled to credit for any time served in detention prior to adjudication of delinquency for the probation violation. We are unpersuaded that the General Assembly’s 2010 amendment to OCGA § 17-10-11 requires a different result because the plain language of that statute applies to criminal sentences, and an order of disposition from a juvenile court is “not a conviction of a crime.”* Indeed, a juvenile court “disposes of the case after determining whether treatment, rehabilitation, or supervision is needed; it does not sentence the child.” Accordingly, the juvenile court did not err.

As to the August 2011 order, pursuant to OCGA § 15-11-65 and following an August 2, 2011 adjudication for a probation violation, the juvenile court ordered that M. A. I. be detained until disposition, pending the receipt of a written psychological evaluation. The juvenile court issued a continuance order on August 31, 2011, noting that an evaluation had been scheduled for August 23, 2011, and that a dispositional hearing would be set as soon as possible after receipt of the written evaluation. After receiving the written evaluation, the juvenile court held a dispositional hearing the next day, after which it did not order further detention in the disposition.

Under OCGA § 15-11-65, a juvenile court may continue dispositional hearings “for a reasonable period to receive reports and other evidence bearing on the disposition or the child’s need for treatment or rehabilitation.” And when it does so, the court “shall make an appropriate order for detention of the child or for the child’s release from detention subject to supervision of the court during the period of the continuance.” Additionally, OCGA § 15-11-65 provides that if a juvenile is to be held in custody at a detention facility between the adjudicatory hearing and the dispositional hearing, the court “shall conduct the dispositional hearing within 30 days of the adjudicatory hearing unless the court makes and files written findings of fact explaining the need for the delay.”

Reading OCGA § 15-11-65 and the above-quoted language of OCGA § 15-11-66 in parimateria, the plain language of the statutes did not require the juvenile court to give credit for pre-disposition detention because the credit-for-time-served provision of OCGA § 15-11-66 applies to post-disposition detention. Following the dispositional hearing at issue, M. A. I. was not ordered to further detention. Additionally, the plain language of OCGA § 15-11-65 clearly contemplates situations in which a child might be detained for more than 30 days between adjudication and disposition. Accordingly, the trial court did not err in this respect either.

2. Next, M. A. I. argues that the juvenile court failed to “make treatment and rehabilitative efforts ... in violation of the purpose of juvenile courts.” Again, we disagree.

M. A. I. argues that at each subsequent proceeding for violating the terms of his probation, counsel argued for referrals to mental-health treatment because “access to care would help in [his] treatment and rehabilitation.” And M. A. I. readily admits that “[e]ach time, a referral for counseling was part of the dispositional order.” Nevertheless, and despite the complete lack of supporting evidence in the record as it exists before us, M. A. I. argues that these referrals incurred delays in scheduling due to discontinuation of Medicaid benefits during M. A. I.’s periods of detention. M. A. I. also attaches to his brief a psychological evaluation that was conducted prior to the evaluation ordered and accepted by the juvenile court in August 2011, and he takes issue with the trial court’s decision to continue proceedings until receipt of an evaluation conducted by the Department of Behavioral Health, contending that “[t]here was no rehabilitative purpose in ordering a second evaluation after a qualified psychologist, approved by the Department of Juvenile Justice, had already administered one.” Finally, M. A. I. criticizes the juvenile court’s decision to extend probation for an additional two years, arguing that the court failed to consider his difficult home life in making its decisions.

Essentially, M. A. I. asks this Court to second guess every decision made by the juvenile court. But OCGA § 15-11-66 (a) provides a list of “orders of disposition best suited to the child’s treatment, rehabilitation, and welfare,” which a juvenile court may make “if the child is found to have committed a delinquent act and is subsequently determined to be in need of treatment or rehabilitation.” The choice of which disposition is best suited for these purposes is vested in the discretion of the juvenile court, and OCGA § 15-11-70 (a) permits a juvenile court to extend the duration of an order of disposition by an additional two years so long as, inter alia, the court “finds that the extension is necessary for the treatment or rehabilitation of the child.” Because we discern no abuse of discretion in the disposition made by the juvenile court in the case sub judice, this enumeration of error is without merit.

3. Finally, M. A. I. argues that the combination of the evening reporting program’s schedule and his periods of detention for probation violations made it impossible to comply with the juvenile court’s order to complete 120 days of the reporting program without extending the duration of probation. Once again, we disagree.

M. A. I. ignores the fact that the evening reporting program was an original condition of probation that he repeatedly violated, and the trial court increased the reporting requirement as a graduated sanction in response to M. A. I.’s violations of probation. The fact that this requirement could not be completed within the original duration of the March 2010 order is directly attributable to M. A. I.’s failure to comply with the terms of probation, which were ordered due to the trial court’s finding that he was “in need of treatment and rehabilitation.” The special conditions of probation for the March 2010 order describe the evening reporting program as “[a] highly supervised and structured after school program that responds to the specific identified academic and social needs of the juvenile participant and their legal parents/guardians/custodians.” And the juvenile court was permitted to extend the duration of M. A. I.’s probation upon finding that it was necessary for the completion of this program and, thus, his treatment and rehabilitation.

For all of the foregoing reasons, the juvenile court’s judgment is affirmed.

Judgment affirmed.

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

Decided January 22, 2013.

Megan R. Pulsts, for appellant.

Layla H. Zon, District Attorney, Vanessa C. Webber, Assistant District Attorney, for appellee.

        See OCGA § 16-13-30.2 (a) (“Any person who knowingly manufactures, distributes, or possesses with intent to distribute an imitation controlled substance as defined in paragraph (12.1) of Code Section 16-13-21 is guilty of a misdemeanor of a high and aggravated nature.”); see also OCGA § 15-11-72 (“An order of disposition or other adjudication in a proceeding under this article is not a conviction of a crime . . . .”).

       We note in passing that the record does not contain any indication of when M. A. I. was detained, but M. A. I. attached an exhibit to his brief that detailed the dates of his various detentions. However, we cannot consider this exhibit or the other exhibits attached to M. A. I.’s brief. See Court of Appeals Rule 24 (g) (“Documents attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court, shall not he considered on appeal.”).

       OCGA § 17-10-11 (a).

       OCGA § 17-10-11 (b).

        See Ga. H.B. No. 1104, Reg. Sess., 2010 Ga. Laws, § 9 (amending prior OCGA § 17-10-11 (b)).

       Ga. H.B. No. 1104, Reg. Sess., 2010 Ga. Laws, § 10. Section 2 added OCGA § 15-11-40.1, a new Code section for graduated sanctions, which was previously incorporated into OCGA § 15-11-66. Id. § 2. Section 5 amended OCGA § 15-11-66. Id. § 5.

       We make no decision on the merits of M. A. I.’s arguments as to the Code section as currently codified.

        See Ga. H.B. No. 1104, Reg. Sess., 2010 Ga. Laws, § 5 (emphasis supplied) (amending prior OCGA § 15-11-66 (b) (1)) (codified as amended at OCGA § 15-11-66 (b) (2) (A), (B)); see also Ga. H.B. No. 1104, Reg. Sess., 2010 Ga. Laws, § 2 (amending prior OCGA § 15-11-66 (b) (2), which provided for graduated alternative sanctions for juveniles on probation).

        See In the Interest of J. R., 280 Ga. App. 143, 144 & n.2 (1) (633 SE2d 447) (2006).

        See OCGA § 17-10-11 (b) (“This Code section applies to sentences for all crimes, whether classified as violations, misdemeanors, or felonies . . ..” (emphasis supplied)).

       OCGA § 15-11-72; see also A. B. W v. State, 231 Ga. 699, 701 (II) (203 SE2d 512) (1974) (“A Juvenile Court convicts a child for being delinquent, and such an adjudication is not a conviction of a crime or crimes.”).

        In the Interest of M. D., 233 Ga. App. 261, 263 (2) (b) (503 SE2d 888) (1998) (punctuation omitted) (construing prior versions of OCGA §§ 15-11-65 and 15-11-66).

        See OCGA § 15-11-65 (c); see also OCGA § 15-11-12 (b) (“During the pendency of any proceeding, the court may order the child to be examined at a suitable place by a physician or psychologist. . . .”).

       OCGA § 15-11-65 (c).

       Id.

       OCGA § 15-11-65 (a) (emphasis supplied).

        See Spectera, Inc. v. Wilson, 317 Ga. App. 64, 67-68 (1) (730 SE2d 699) (2012) (“[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.” (punctuation omitted)).

        See OCGA § 15-11-66 (b) (1) (2010) (“Achild ordered to ayouth development center under this paragraph and detained in a secured facility pending placement in the youth development center shall be given credit for time served in the secured facility awaiting placement.” (emphasis supplied)); see also In the Interest of J. R., 280 Ga. App. at 144 (1) (“[T]he law provides that [the juvenile] will be given credit for any time spent in detention following his adjudication but prior to his being admitted into the boot camp program.”).

        See OCGA § 15-11-65 (a) (“If the child is to be held in custody at a detention facility between the adjudicatory hearing and the dispositional hearing, the court shall conduct the dispositional hearing within 30 days of the adjudicatory hearing unless the court makes and files written findings of fact explaining the need for the delay.”).

        Compare OCGA § 15-11-63 (e) (1) (B) (“When the order is for restrictive custody in the case of a child found to have committed a designated felony act. . . [t]he order shall provide that... [t]he child shall initially be confined in a youth development center for a period set by the order, to be not less than 12 nor more than 60 months; provided, however, that time spent in secure detention prior to placement in a youth development center shall be counted toward the period set by the order . .. .”); In the Interest of L. R., 316 Ga. App. 374, 375-76 (729 SE2d 520) (2012) (construing the plain language of OCGA § 15-11-63 (e) (1) (B) as mandating “that a juvenile’s pre-disposition detainment must be credited to the time set for confinement”).

       We note that the only transcript before this Court comes from the March 6,2012 hearing on the motion to extend probation, and as such, we cannot verify this contention.

        See supra Division 1. As explained above, we cannot consider exhibits attached to briefs. See supra note 2.

       OCGA § 15-11-66 (a).

        See In the Interest of A. H. S., 223 Ga. App. 824, 826 (2) (479 SE2d 157) (1996) (construing prior version of OCGA § 15-11-66 and holding that “after a dispositional hearing, a juvenile court finding a child in need of treatment or rehabilitation can make any dispositional orders provided under [the Code section]”); see also In the Interest of A. D. F., 176 Ga. App. 5, 7 (335 SE2d 144) (1985) (Beasley, J., dissenting) (construing prior version of OCGA § 15-11-66 and positing that it gives “[w]ide discretion in fashioning an appropriate disposition “best suited to [the child’s] treatment, rehabilitation, and welfare’ ”).

       OCGA § 15-11-70 (a) (3).

        See OCGA § 15-11-70 (a) (“[A]n order of disposition committing a delinquent or unruly child to the Department of Juvenile Justice continues in force for two years or until the child is sooner discharged by the Department of Juvenile Justice. The court which made the order may extend its duration for an additional two years subject to like discharge . . . .”).

        See id.; see also In re T. B., 268 Ga. 149, 150 (486 SE2d 177) (1997) (construing former version of statute and holding that an order of extension operates to further the accomplishment of a juvenile’s treatment and rehabilitation and is not punishment); In the Interest of J. R., 280 Ga. App. at 144 (noting that juvenile court could extend duration of juvenile’s commitment after complying with OCGA § 15-11-70 (a)).


author: Ray, Judge.

text:
    A12A1787.
    COPELAND v. THE STATE.
    (737 SE2d 590)
   Ray, Judge.

Following a jury trial, Dominique Copeland was convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a crime. Copeland appeals, contending that the trial court erred in denying his motion for new trial because the evidence was insufficient to convict him. Finding no error, we affirm.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and Copeland no longer enjoys the presumption of innocence.

In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.

So viewed, the evidence shows that, on July 13, 2007, Copeland and two other men entered Damion Holmes’ retail clothing store, Navy Blu, and began looking around. Holmes was busy with other customers at the time, but he observed Copeland and the two men looking around the store and then leaving. About an hour later, the two men who had been with Copeland earlier came back into the store and began looking around as if they were shopping. After a customer exited the store, the two men approached Holmes at the cash register, and Copeland came in with a handgun. Copeland was standing next to Holmes, holding him at gunpoint, while the other two men were “wiping out the [clothing] racks.” As the two men left with the clothes, Copeland took the cash register and a laptop computer, and the three men exited the store. The armed robbery lasted approximately one minute. Holmes then followed the three men out into the parking lot, where he observed them getting into a tan Nissan Pathfinder automobile. Before the vehicle drove away, Holmes heard a gunshot and saw the rear window of the vehicle shatter, and a bullet struck Holmes in the leg. Although Holmes provided the police with a description of the gunman, they were unable to locate any suspects.

Approximately six months later, the store next to Navy Blu was robbed, and the police asked Holmes to come to the police station to look at a photographic lineup to see if the suspect in that case was the same person who had robbed him. Holmes was unable to pick anyone out of the initial photographic lineup. However, after examining the photographic lineup, Holmes looked up and saw several photographs of various other individuals hanging on the cubicle wall and immediately identified one of them, Copeland, as the gunman who had robbed and shot him. The police then moved Holmes to a different area of the police station and presented him with a second photographic lineup which included a photograph of Copeland. Holmes positively identified Copeland from the second photographic lineup. At trial, Holmes again positively identified Copeland as the gunman who had robbed him, testifying that he was “one hundred percent” sure and that he would never forget his face.

On appeal, Copeland’s sole enumeration of error is that there was insufficient evidence to support his convictions. Copeland contends that the only evidence implicating him at trial was Holmes’ eyewitness identification testimony. However, the testimony of a single witness is generally sufficient to establish a fact. Copeland argues, specifically, that Holmes’ identification was unreliable because the incident happened very quickly and his identification was made approximately six months after the crimes. On appeal, however, “we do not determine the credibility of eyewitness identification testimony. Rather the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” Here, Holmes’ testimony identifying Copeland as the perpetrator of the crimes is sufficient to authorize the jury’s verdict of guilty beyond a reasonable doubt.

Judgment affirmed.

Miller and Branch, JJ., concur.

Decided January 23, 2013.

Eric J. Taylor, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a).

       OCGA § 16-11-106 (b).

        Lee v. State, 317 Ga. App. 507 (731 SE2d 768) (2012).

       (Citation omitted.) Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009).

       OCGA § 24-4-8.

       (Citation and punctuation omitted.) Freeman v. State, 306 Ga. App. 783, 784 (1) (703 SE2d 368) (2010).

       Id.


author: Miller, Judge.

text:
    A12A1929.
    STALLINGS v. THE STATE.
    (737 SE2d 592)
   Miller, Judge.

Following a bench trial, Dominique Stallings was convicted of driving with an unlawful alcohol concentration (“DUI per se”) (OCGA § 40-6-391 (a) (5)). The trial court denied Stallings’s motion for a new trial. On appeal, Stallings contends that the trial court erred in (i) finding him guilty of the DUI offense and (ii) considering inadmissible hearsay evidence. Discerning no reversible error, we affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. We neither assess the credibility of the witnesses nor weigh the evidence, but instead determine only whether a rational trier of fact could have found each of the elements of the crime proven beyond a reasonable doubt.

(Citations and punctuation omitted.) Stephens v. State, 271 Ga. App. 634 (610 SE2d 613) (2005).

So viewed, the trial evidence shows that at approximately 1:00 a.m. on March 26, 2011, an officer with the DeKalb County police department responded to a dispatch call reporting that a driver was passed out behind the steering wheel of a vehicle at a local intersection. Upon arriving at the intersection, the officer observed Stallings’s vehicle matching the reported description in a nearby parking lot. Stallings’s vehicle was parked in an irregular manner outside of the marked parking spaces. Stallings was sitting in the driver’s seat and was alone in the vehicle. The keys were inside the vehicle’s ignition.

The officer approached the vehicle and observed that Stallings was visibly intoxicated. The officer described that Stallings had glassy eyes, disheveled clothing, and a slight odor of alcohol emanating from his breath. Stallings also staggered when he walked. Stallings informed the officer that he was coming from a jazz club and was on his way home. Stallings agreed to perform field sobriety evaluations, during which the officer observed several signs of intoxication. After Stallings failed the field sobriety evaluations, he was arrested for DUI.

Stallings consented to the State’s intoxilyzer test. The test results showed that Stallings had an alcohol concentration of 0.212 grams.

1. Stallings contends that the evidence was insufficient to establish his guilt of the DUI offense. Although Stallings does not dispute that he was impaired when he spoke to the officer at the scene, he argues that there was no evidence that he drove the vehicle while intoxicated. We disagree.

OCGA § 40-6-391 (a) (5) provides:

A person shall not drive or be in actual physical control of any moving vehicle while . . . [t]he person’s alcohol concentration is 0.08 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended[.]
It is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. It is likewise settled that to sustain a judgment of conviction, the 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.

(Citations, punctuation and emphasis omitted.) Stephens, supra, 271 Ga. App. at 635; see also Dorris v. State, 291 Ga. App. 716, 718 (662 SE2d 804) (2008).

Here, the evidence established that Stallings was found in the driver’s seat of his irregularly parked vehicle with the keys in the ignition. Stallings was the sole occupant of the vehicle, and there was no evidence that any third party had driven the vehicle to the location. Stallings failed field sobriety tests and had a blood-alcohol concentration of 0.212 grams according to the State-administered intoxilyzer test. “Although the officer did not see the car moving, he observed circumstances from which [the trier of fact] could infer that [Stallings] was in actual physical control of the car when it was moved to the location where the officer found it, and that [Stallings] was intoxicated while moving it there.” (Citations and punctuation omitted.) Stephens, supra, 271 Ga. App. at 635.

Although Stallings argues that there may have been alternative hypotheses to support a contrary finding that he did not drive to the location while intoxicated, his argument is unavailing. The reasonableness of a hypothesis was for the trier of fact to determine, and the trier of fact was authorized to reject the hypotheses offered by Stallings. See Stephens, supra, 271 Ga. App. at 635; Jones v. State, 187 Ga. App. 132, 133 (1) (369 SE2d 509) (1988). Based upon the evidence presented, the trial court was authorized to find that Stallings was guilty beyond a reasonable doubt of the DUI per se offense. See OCGA § 40-6-391 (a) (5); Dorris, supra, 291 Ga. App. at 718-719 (affirming the defendant’s DUI per se conviction based upon evidence as to the irregular manner in which defendant’s truck was parked in the parking lot, defendant’s presence in the driver’s seat, the signs of intoxication, and the intoxilyzer test results showing a blood-alcohol concentration of 0.198 grams); O’Connell v. State, 285 Ga. App. 835, 836-837 (1) (a) (648 SE2d 147) (2007) (ruling that there was sufficient circumstantial evidence supporting the defendant’s DUI per se conviction given the defendant’s degree of intoxication and 0.217 blood-alcohol level within three hours of the time that he was in actual physical control of the vehicle).

2. Stallings further contends that the trial court erred in considering inadmissible hearsay during the trial. Specifically, he asserts that the trial court erroneously considered the dispatcher’s description of his vehicle, along with statements that he had been unconscious at the intersection and that witnesses had to push his vehicle from the roadway. Again, no basis for reversal has been shown.

(a) Description of the Vehicle. Evidence of the dispatcher’s description of Stallings’s vehicle did not amount to inadmissible hearsay. “Testimony is considered hearsay only if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of that statement.” (Citation and punctuation omitted.) Howard v. State, 305 Ga. App. 159, 161 (2) (a) (699 SE2d 114) (2010). “When, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence.” Former OCGA § 24-3-2. The record shows that the dispatch description of the vehicle was admitted for the limited purpose of explaining the officer’s conduct in responding to the dispatch call and investigating Stallings’s vehicle. As such, the admission of the dispatch description was not erroneous. See Howard, supra, 305 Ga. App. at 161 (2) (a) (officer’s testimony about the radio call describing the suspect was admissible to explain the officer’s actions in responding to the radio call); Morrow v. State, 257 Ga. App. 707, 708 (2) (572 SE2d 58) (2002) (ruling that the officer’s testimony about the information he received from the police radio dispatcher was admissible to explain the officer’s reason for investigating the defendant).

Decided January 23, 2013.

Zachary W. Procter, for appellant.

Sherry Boston, Solicitor-General, John C. Boyd, Assistant Solicitor-General, for appellee.

(b) Reports of Stallings’s Unconsciousness. The officer testified that the dispatcher relayed a report that Stallings had been unconscious at the intersection, and witnesses at the scene stated that Stallings’s vehicle had to be pushed out of the roadway. Stallings asserts that the officer’s testimony in this regard was inadmissible hearsay, which the trial court erroneously considered in its adjudication.

Pretermitting whether the trial court erred in admitting the reported information that Stallings had been unconscious and unable to safely operate his vehicle, no harm has been shown from the error in light of the other evidence establishing Stallings’s guilt of the DUI per se offense beyond a reasonable doubt. Notably, the most probative evidence establishing Stallings’s guilt was the officer’s personal observations that Stallings was visibly intoxicated and was sitting in the driver’s seat of the irregularly parked vehicle with the keys still in the ignition; Stallings’s failure of the field sobriety evaluations; and the intoxilyzer test results showing that Stallings had a blood-alcohol concentration of 0.212 grams, which greatly exceeded the legal limit. In the context of the overwhelming properly admitted evidence establishing Stallings’s guilt of the DUI per se offense, the admission of the testimony in question must be considered harmless. See Jones v. State, 200 Ga. App. 666 (3) (409 SE2d 251) (1991).

Judgment affirmed.

Ray and Branch, JJ., concur.


author: Ellington, Chief Judge.

text:
    A12A2032.
    SMITH v. THE STATE.
    (737 SE2d 700)
   Ellington, Chief Judge.

AFulton County jury found Antoine Smith guilty of rape, OCGA § 16-6-1 (a) (1), and aggravated child molestation, OCGA § 16-6-4 (c). Smith appeals pursuant to an order granting an out-of-time appeal, contending that the evidence was insufficient to support his convictions and that the trial court committed certain errors. For the following reasons, we affirm his rape conviction, but we reverse his aggravated child molestation conviction.

1. Smith contends that the State’s evidence was insufficient to support his convictions. We disagree.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [Smith] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

(Citations and footnotes omitted.) Eady v. State, 256 Ga. App. 696 (569 SE2d 603) (2002). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.” (Footnote omitted.) Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).

So viewed, the record reveals the following. In July 2004, ten-year-old T. F. told an investigator with the Atlanta Police Department that her mother’s boyfriend, Smith, had molested her on several occasions during that summer. T. F. testified at trial that, on one occasion, Smith approached her in the evening after he had been drinking and offered to teach her about sex. Smith instructed T. F. to put her mouth on his penis. Smith also pulled the victim’s pants down and inserted his penis into the victim’s anus. T. F. testified that the anal penetration hurt her and caused her to cry. Smith warned the victim to tell no one. On another occasion, Smith ordered the victim into his bed, where he had vaginal intercourse with her. He also told the victim to perform oral sex on him. T. F. testified that the intercourse was painful and caused vaginal bleeding. She also testified that she did not want to have sex with Smith, but that she believed she was required to comply with his demands because he was an adult.

The victim did not make an immediate outcry because she was afraid of her mother, who had severely beaten her and tied her up in the past. But she eventually told her mother and her grandmother about the sexual abuse, and her grandmother called the police. Although a physical examination of the victim revealed no evidence of trauma to the genital or anal area, the victim tested positive for chlamydia. The victim also had old rope burns on her hands. The victim gave a statement concerning the sexual abuse to a social worker, and the social worker testified that T. F. told her that Smith had engaged her in acts of anal, oral, and vaginal sex. A psychologist, Anique Whitmore, also testified concerning the various ways victims of child sexual abuse may disclose the abuse.

(a) Pursuant to OCGA § 16-6-1 (a) (1), a person commits the offense of rape when he has “carnal knowledge” of a female “forcibly and against her will.” “Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1 (a). “The term ‘against her will’ means without consent; the term ‘forcibly’ means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.” (Punctuation and footnote omitted.) Jenkins v. State, 259 Ga. App. 87, 88 (1) (576 SE2d 68) (2003).

The victim’s testimony was sufficient to establish that Smith had vaginal intercourse with her. Further, the jury could infer from the victim’s testimony and her young age that she did not willingly consent but was intimidated into complying with Smith’s demands out of fear of punishment. Thus, viewed in a light most favorable to the verdict, this evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt that Smith committed the offense of rape. See Jenkins v. State, 259 Ga. App. at 88 (1).

(b) OCGA § 16-6-4 (c) provides that a “person commits the offense of aggravated child molestation when such person commits an offense of child molestation which... involves an act of sodomy.” Further, “[a] person commits the offense of child molestation when [he or she] ... [d] oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a) (1). An act of sodomy includes “any sexual act involving the sex organs of one person and the ... anus of another.” OCGA § 16-6-2 (a) (1).

The indictment alleged that Smith, during an act of child molestation, committed an act of sodomy by placing his penis against the victim’s anus. The victim, who was under the age of 16 years, testified that Smith engaged her in sexual activity and that he inserted his penis into her anus. A jury could infer that Smith’s actions were intended to satisfy his sexual desires. Thus, this evidence was sufficient to support his conviction for aggravated child molestation beyond a reasonable doubt. See Morgan v. State, 226 Ga. App. 327, 329 (2) (486 SE2d 632) (1997) (testimony that the defendant put his penis “on [the victim’s] butt” was sufficient to sustain the conviction for aggravated child molestation based upon an act of sodomy).

2. Smith contends that the trial court erred by allowing his trial counsel to introduce evidence of prior dismissed or superseded indictments for the same offense for which he was being tried. The record shows that Smith’s trial counsel used the prior indictments as evidence to bolster his argument that the victim’s allegations were fabricated because they had changed over time: “So why all the indictments? Because as [the victim’s] story kept changing[,] the charges had to change with it.” Although the court allowed the introduction of this evidence and argument based upon it, the court did not allow the indictments to be sent out with the jury during deliberations.

Because Smith’s counsel chose to introduce the indictments for a strategic purpose, Smith may not now complain that the court erred in admitting them. “Generally, a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.” Ohler v. United States, 529 U. S. 753, 755 (120 SC 1851, 146 LE2d 826) (2000). Moreover, “[a] criminal defendant cannot complain of an error or ruling which his own conduct procured or aided in causing.” Murry v. State, 239 Ga. App. 861 (1) (522 SE2d 269) (1999) (defendant stipulated at trial to the admission into evidence of his two prior convictions for possession of marijuana). Consequently, we find no error.

3. Smith contends that the trial court erred in admitting evidence of prior physical abuse of the victim by the victim’s mother. During the State’s direct examination, the victim testified that her mother had whipped her and tied her up. The victim’s mother gave similar testimony. Smith did not interpose a contemporaneous objection to this testimony; rather, he complained for the first time in his motion for new trial. As we have explained, “raising evidentiary arguments for the first time in a motion for new trial is too late and does not preserve the issue for appellate review.” Dyer v. State, 257 Ga. App. 267, 268 (2) (570 SE2d 692) (2002). Consequently, any error concerning the admission of this evidence has been waived.

4. Smith contends that the trial court erred when it qualified Anique Whitmore as an expert witness. We disagree.

“Acceptance or rej ection of the qualifications of a proposed expert witness is within the sound discretion of the trial judge and will not be disturbed on appeal absent manifest abuse.” Bridges v. State, 279 Ga. 351, 354 (3) (613 SE2d 621) (2005).

An expert witness is anyone who, through training, education, skill, or experience, has particular knowledge that the average juror would not possess concerning questions of science, skill, trade, or the like. An expert witness may render an opinion within his area of expertise after the proper qualifications have been proven to the trial court.

(Footnotes omitted.) Fielding v. State, 278 Ga. 309, 311 (3) (602 SE2d 597) (2004).

The court found Whitmore qualified as an expert “to testify in matters related to forensic interviewing and the assessment and treatment of abused children.” The record shows that Whitmore has a master’s degree in counseling psychology and is a licensed professional counselor. Whitmore was employed as a director at Harbor House, a regional child advocacy center. She had conducted over 900 forensic interviews and over 1,500 clinical assessments of abused children, and she had testified in court approximately 85 times. Given the evidence of Whitmore’s education, training, and experience, we cannot say that the trial court abused its discretion in qualifying Whitmore as an expert witness. See Miller v. State, 273 Ga. App. 761, 764 (3) (615 SE2d 843) (2005) (qualifying a witness as an expert was not an abuse of discretion as the witness had over 20 years of experience in the field of domestic violence and an educational background in psychology). Further, there is no evidence that Whit-more gave any testimony beyond the scope of her expertise.

5. Smith contends that there was a fatal variance between the indicted offense of aggravated child molestation and the court’s charge to the jury concerning that offense and, as a result, his conviction on that count must be reversed. We agree.

Count 2 of the indictment charged Smith with aggravated child molestation by committing an act of sodomy, specifically, the act of placing his penis “into and upon” the victim’s anus. In its charge to the jury, the trial court defined aggravated child molestation as an act of child molestation which involves sodomy or which physically injures the child, as set forth in OCGA § 16-6-4 (c).

Generally, inapplicable portions of a charged Code section are unnecessary and not harmful. Perguson v. State, 221 Ga. App. 212, 213 (1) (470 SE2d 909) (1996). However,

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

(Citations and punctuation omitted.) Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999). Upon reviewing the charge as a whole, we note that the jury was not instructed to limit its consideration to the commission of the crime as alleged in the indictment. See Dukes v. State, 265 Ga. 422, 424 (457 SE2d 556) (1995) (“[wjithout a limiting instruction . . . , the jury charge on unlawful appropriation violated due process”). Given the evidence in this case, we conclude that there was a reasonable possibility that the jury convicted Smith of committing the crime of aggravated child molestation in a manner not alleged in the indictment. There was some evidence adduced that the victim was physically injured as a result of sexual intercourse with Smith. The victim testified that intercourse caused her pain and subsequent bleeding, evidence from which the jury could conclude that the victim was physically injured. See Ferguson v. State, 221 Ga. App. at 214-215 (1) (“Given the court’s charge, the evidence presented, and the absence of a limiting charge, the jury could well have believed that [the defendant] committed aggravated child molestation by committing an act of child molestation that physically injured the victim.”). Consequently, Smith’s conviction for aggravated child molestation must be reversed.

6. Smith contends that the trial court denied him his constitutional right to be present at trial because, although he was present in the courtroom, the judge did not include him in off-the-record, sidebar conferences with counsel. We disagree.

Embodied in the constitutional right to the courts under Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983 is the right of the criminal defendant to be present... at any stage of a criminal proceeding that is critical to its outcome if the defendant’s presence would contribute to the fairness of the procedure.

(Citations and punctuation omitted.) Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001). Stated differently,

[i]n a prosecution for a felonyf,] the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge, but not when presence would be useless, or the benefit but a shadow.

(Citations and punctuation omitted.) Lyde v. State, 311 Ga. App. 512, 515 (1) (716 SE2d 572) (2011). “Our Supreme Court has held that a defendant’s case was not substantially affected by his absence from bench conferences at which the judge and counsel discussed legal matters about which the appellant would have known very little or nothing, and no witnesses discussed their testimony.” (Citations and punctuation omitted.) Id.

In this case, the record shows that several bench conferences occurred, and it appears that the court and counsel discussed either housekeeping matters or the merits of evidentiary objections. The objections and the court’s rulings on those objections were made in the defendant’s presence and are preserved in the trial transcript. There is no evidence in the record suggesting that Smith’s presence at the bench during either housekeeping or legal discussions was necessary to defend against the charges, that his presence would have been useful to the resolution of any matter before the court, or that his absence from the sidebar conferences in any way affected the fairness of the trial procedure or caused Smith to lose or waive any right or defense. Therefore, Smith’s absence during these sidebar discussions did not violate his due process right to be present during critical stages of the proceedings against him. See Lyde v. State, 311 Ga. App. at 516-517 (1) (An untranscribed bench conference between the trial court and counsel over whether defendant’s character had been placed in issue by a line of questioning was not a critical stage of the proceeding at which defendant had the right to be present.); see also Barrett v. State, 275 Ga. 669, 671-672 (4) (571 SE2d 803) (2002) (there was no violation of the defendant’s right to be present when the judge conferred with counsel in the defendant’s absence before instructing the jury to retire for the evening).

Decided January 25, 2013.

Edward V. C. Silverbach, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       The court charged the jury as follows:
      A person commits the offense of aggravated child molestation when that person does an immoral or indecent act to or in the presence of or with a child less than 16 years of age, with the intent to arouse or satisfy the sexual desires of either the child or the person and the act physically injures the child or involves the act of sodomy.

       OCGA § 16-6-4 (c) provides: “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.”

       Though these facts were arguably the ones used to prove the rape conviction, the jury also could have believed that they supported the offense of aggravated child molestation. Thus, the jury could have found Smith guilty of aggravated child molestation as alleged in the indictment based upon these facts even if the jury did not believe that Smith had anally sodomized the victim.

       The State may retry Smith, if it so chooses, because the State’s evidence was sufficient to support his conviction for aggravated child molestation beyond a reasonable doubt, as we held in Division 1 (b), supra. See Osborne v. State, 166 Ga. App. 439, 440 (304 SE2d 416) (1983) (“Once a reviewing court reverses a conviction solely for insufficiency of the evidence to sustain the verdict of guilty, double jeopardy bars retrial; however, where a defendant obtains a reversal based upon ‘trial error,’ double jeopardy does not bar retrial.”) (citation omitted).