author: Miller, Judge.

text:
    A11A1500.
    PAGE v. THE STATE.
    (722 SE2d 408)
   Miller, Judge.

Following a jury trial, Devin Page was convicted of public drunkenness (OCGA § 16-11-41 (a)). Page appeals from the denial of his motion for new trial, contending that his due process rights were violated because he was not competent to stand trial and his trial counsel should have obtained an independent psychiatric evaluation, rather than rely on state-funded evaluations. Discerning no error, we affirm.

The record shows that following Page’s arraignment, the trial court approved appointed counsel’s request for a forensic mental evaluation regarding Page’s competency to stand trial. A state psychiatrist conducted an initial evaluation in June 2009, and she opined that Page was competent to stand trial. The state psychiatrist re-evaluated Page nearly a month later after he engaged in inappropriate, violent, and disorganized behavior in a subsequent court appearance. At this time, the psychiatrist determined that Page was not competent to stand trial. The trial court then entered a judgment on a special plea of mental incompetency, and ordered that Page be confined in a state facility for the mentally ill.

Page received treatment at Georgia Regional Hospital in an effort to restore his competency, which included treatment with medication. Page was subsequently re-evaluated at Georgia Regional by two other state psychiatrists in April 2010. Both psychiatrists concluded that Page was competent to stand trial because he was aware of the charges against him and the possible consequences of a conviction, he adequately understood the roles of the participants at trial, and he would be able to assist his trial attorney. Based on this evaluation, Page was administratively released from the state mental health facility, and returned to Clayton County Detention Center to await trial. Page was subsequently tried and convicted by a jury in August 2010.

Following his trial, Page underwent another psychological evaluation based on the trial court’s referral to assess his competency to stand trial on new felony charges for which he had been indicted. The psychiatrist opined that Page was not competent to stand trial on the new felony charges after evaluating him in September 2010. Page then filed the instant motion for new trial challenging the prior determination of his competency to stand trial in the instant case, which the court denied.

1. Relying on the psychiatrist’s opinion issued after his trial, as well as his history of mental health issues, Page contends that he was not competent to stand trial. We disagree.

“Competency involves a defendant’s mental state at the time of trial.” (Punctuation omitted.) Wadley v. State, 295 Ga. App. 556, 558 (672 SE2d 504) (2009). Once competency has been determined, “the appropriate standard of appellate review is whether after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was incompetent to stand trial.” (Citation and footnote omitted.) Sims v. State, 279 Ga. 389, 391 (1) (614 SE2d 73) (2005). A defendant’s burden of establishing incompetency is consistent with the principles of due process. Traylor v. State, 280 Ga. 400, 406 (4) (b) (627 SE2d 594) (2006).

The threshold for competency is easily met in most cases; it exists so long as a defendant is capable at the time of the trial of understanding the nature and object of the proceedings going on against him and rightly comprehends his own condition in reference to such proceedings, and is capable of rendering his attorneys such assistance as a proper defense to the indictment preferred against him demands.

(Citation and punctuation omitted.) Id.

Here, the record establishes that there was sufficient evidence to demonstrate Page’s competency at the trial in the instant case. Contrary to Page’s suggestion, there was no presumption that he was incompetent to stand trial in August 2010. Although he was placed in a state mental health facility after a special plea of incompetency was entered, his release from that center and return to the county detention center based on the state psychiatrist’s later determination that he was then mentally competent to stand trial cancelled the presumption of incompetency and raised a presumption of competency. OCGA § 17-7-130 (f); Newman v. State, 258 Ga. 428, 429 (1) (369 SE2d 902) (1988).

As to evidence regarding Page’s competency, the two psychiatrists who evaluated Page in April 2010 concluded that he was aware of the charges against him and the possible consequences of a conviction, that he adequately understood the roles of the participants at trial, and that he would be able to assist his trial attorney. The psychiatrist who subsequently evaluated Page in September 2010 also found that he appeared to understand the nature and object of the proceedings against him, that he had a reasonable assessment of potential consequences, and that he understood general court procedure. Although the psychiatrist’s September 2010 evaluation concluded that Page was not competent to stand trial because “he did not appear fully able to assist his attorney,” the record does not demonstrate that Page was unable to do so at the time of his trial in August 2010. Significantly, Page testified at his trial, and the trial court found that his responses were lucid and coherent. During the hearing regarding the motion for new trial, Page’s trial counsel testified that Page did an “excellent job” assisting in his defense, that he understood and coherently responded to the questions asked by counsel during his examination, and that he never exhibited any sort of irrational behavior during the trial. Co-counsel who assisted in Page’s defense similarly testified that Page helped in his defense, understood the parties’ roles, answered questions coherently, and did not say anything unusual or odd during his trial testimony. Co-counsel also testified that the psychiatric report issued after trial did not alter her opinion of Page’s trial behavior and competency to stand trial. Considering the evidence in the light most favorable to the state, we conclude that a rational trier of fact could have found that Page failed to prove by a preponderance of the evidence that he was incompetent to stand trial in the instant case. See Velazquez v. State, 282 Ga. 871, 875 (1) (655 SE2d 806) (2008).

2. Page next contends that his due process rights were violated when his appointed counsel determined that he did not have the resources to obtain an independent psychiatric examination and instead relied solely on the evaluations conducted by state psychiatrists. We find no merit to his claim.

Although an indigent defendant has a due process right to obtain funds to hire an expert to examine critical evidence, “this right is not without boundaries,” and the right is “contingent on a motion timely made.” (Punctuation and footnotes omitted.) Finn v. State, 274 Ga. 675, 677 (2) (558 SE2d 717) (2002). Without such motion, “a trial court will find it difficult to assess the need for assistance.” (Citation and punctuation omitted.) Bright v. State, 265 Ga. 265, 270 (2) (c) (455 SE2d 37) (1995) (noting that the requirements regarding an indigent’s request for scientific expert assistance are a corollary of the due process principles of Ake v. Oklahoma, 470 U. S. 68 (105 SC 1087, 84 LE2d 53) (1985)). Under Ake, if the defendant cannot afford access to a psychiatrist’s assistance when he has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the state must provide such access. See Callaway v. State, 208 Ga. App. 508, 510 (1) (431 SE2d 143) (1993); Jackson v. State, 180 Ga. App. 774, 775 (1) (350 SE2d 484) (1986) (“Ake’s guidelines are apropos for competency as well as sanity.”). An indigent defendant does not, however, have a constitutional right to “choose a psychiatrist of his personal liking or to receive funds to hire his own.” (Citation and punctuation omitted.) Callaway, supra, 208 Ga. App. at 510-511 (1).

Here, Page was provided with the assistance of three psychiatrists to address the issue of his competency. His due process rights were not violated because he was not entitled to choose a psychiatrist of his personal liking or to receive funds to hire his own. Callaway, supra, 208 Ga. App. at 510-511 (1).

To the extent Page asserts that his trial counsel was ineffective for failing to request an independent evaluation, Page has not established deficient performance by trial counsel. Page’s trial counsel testified that he did not believe that an additional evaluation was necessary, because Page had been an excellent client, and he had no doubts regarding Page’s competency to stand trial. Co-counsel similarly stated that she would have requested another evaluation if she felt that Page was not competent to stand trial, and the fact that there may or may not have been funds available through her office would not have deterred her from seeking state funds. Co-counsel did not request another evaluation, however, because she concluded that Page was competent to stand trial. As a result, Page has not shown that trial counsel acted unreasonably in relying on the evaluations of state psychiatrists conducted prior to his trial. See Whitus v. State, 287 Ga. 801, 803-804 (2) (700 SE2d 377) (2010) (“Ordinarily, [trial counsel’s] lack of [an] investigation even when there has been a previous mental hospitalization is reasonable when an expert has determined that the defendant is fit to stand trial[.]”) (citations and punctuation omitted). The fact that a psychiatric report was issued after trial does not demonstrate that counsel performed deficiently at the time of trial. See generally Angus v. State, 301 Ga. App. 92 (687 SE2d 142) (2009) (“We look at the disputed conduct from the counsel’s perspective at the time the decisions were made, being careful of the distorting effects of hindsight.”) (citation and punctuation omitted).

Decided January 26, 2012.

Larry M. Melnick, for appellant.

Tasha M. Mosley, Solicitor-General, Stacey M. Goad, Assistant Solicitor-General, for appellee.

Accordingly, we affirm because Page did not establish that he was incompetent to stand trial or that his due process rights were otherwise violated.

Judgment affirmed.

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

       In this other criminal case, Page was charged with the felony offenses of terroristic threats and intimidation of a court officer based on statements he made to the former trial judge in this case, who later recused himself based on this conduct.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A11A1936.
    ROSS v. THE STATE.
    (722 SE2d 411)
   McFADDEN, Judge.

Wayne Ross appeals from his convictions for sale of cocaine, possession of cocaine with intent to distribute and obstruction of an officer. Because Ross received effective assistance of trial counsel and the sentence imposed by the trial court was lawful, we affirm.

Construed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that on April 20, 2006, Ross sold cocaine to a confidential informant working with police. Approximately three months later, on July 14, 2006, a deputy sheriff stopped Ross for failing to maintain his lane when she saw the car he was driving swerve over the centerline on a two-lane road. After checking Ross’ driver’s license and insurance, the officer asked if she could search his vehicle, and Ross consented to the search. As Ross got out of the car, he slipped something out of his pocket, attempted to hide it from the deputy and then ran away from the scene. The deputy yelled for him to stop, but he continued to flee with what appeared to be a clear plastic sandwich bag in his hand. Ross ran behind a nearby house, and the officer chased after him. Ross then reappeared, walking casually back around the house. As the deputy placed him under arrest, two people came from the back of the house and said that Ross had thrown something onto the top of the house. Other officers arrived at the scene, and the arresting officer then found and retrieved a plastic sandwich bag, which contained approximately three grams of crack cocaine, from the roof of the house.

Based on the foregoing, Ross was indicted for sale of cocaine, possession of cocaine with intent to distribute, obstruction of an officer and failure to maintain his lane. He was also indicted for another count of allegedly selling cocaine two days prior to the April 20, 2006 sale. The jury acquitted Ross of that earlier alleged sale of cocaine and of failure to maintain his lane, but found him guilty of the April 20 cocaine sale, possession with intent to distribute and obstruction. The trial court sentenced Ross as a recidivist to consecutive life terms for the two drug offenses and to a concurrent twelve-month term for the obstruction offense. Ross’ motion for a new trial was denied, and he appeals.

1. Ross contends that his trial counsel was ineffective in failing to file a motion to sever the two sale of cocaine charges from the possession with intent to distribute charge, failing to file a motion to suppress the cocaine found on the roof of the house, failing to object when the cocaine was introduced into evidence and failing to object to the state’s motion that he be sentenced as a recidivist. To establish ineffective assistance of counsel, Ross must show both that his counsel’s performance was deficient and that his defense was prejudiced to the extent that, but for that deficient performance, a reasonable probability exists that the outcome of the trial would have been different. Lacey v. State, 288 Ga. 341, 343 (4) (703 SE2d 617) (2010). Ross, however, is unable to make both required showings.

(a) “[T]he decision regarding whether to file a motion to sever is a matter of trial tactics and strategy, and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. [Cit.]” Clowers v. State, 299 Ga. App. 576, 579 (2) (c) (683 SE2d 46) (2009). Here, trial counsel testified at the motion for new trial hearing that, after discussing the issue with Ross, they decided as a matter of trial strategy not to seek a severance. They believed that one of the sale of cocaine counts was very weak and that the possession with intent to distribute charge was also flawed since the drugs were not found in Ross’ actual possession. So they hoped that the cumulative effect of the weakness of those counts would dominate the case and result in acquittals for all three drug charges; indeed, Ross was acquitted of one of the sale counts. Ross presented no evidence to contradict counsel’s testimony concerning the trial strategy.

Moreover, Ross has

fail[ed] to show that a motion to sever would have been granted. Such decisions are within the discretion of the trial court, and a defendant must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process.

(Citations and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 743 (3) (a) (719 SE2d 601) (2011). Because Ross has shown neither deficient performance nor prejudice based on the tactical decision not to file a motion to sever, he has failed to establish ineffective assistance of counsel.

(b) Ross contends that trial counsel should have moved to suppress evidence because he was illegally detained after the traffic stop. However, the officer’s uncontradicted testimony that she observed the car failing to maintain its lane “provided the reasonable suspicion necessary to support the traffic stop. Further, during such a valid traffic stop, [the officer] could properly request consent to search the vehicle and could properly ask the occupant [ ] to exit the vehicle and provide identification.” (Citation omitted.) Rogue v. State, 311 Ga. App. 421, 423 (715 SE2d 814) (2011). In this case, there is no evidence that the officer’s request to search the vehicle imposed any substantive delay of the lawful traffic stop. On the contrary, it appears from the officer’s testimony that immediately after checking Ross’ license and insurance, she asked for and obtained Ross’ consent to search the vehicle, after which he fled from the scene. Thus, contrary to Ross’ argument, there was no illegal detention that would have supported a motion to suppress. See Hammont v. State, 309 Ga. App. 395, 398 (710 SE2d 598) (2011) (trial court properly denied motion to suppress where officer’s request for consent to search vehicle did not delay traffic stop); Proctor v. State, 298 Ga. App. 388, 390 (2) (680 SE2d 493) (2009) (no Fourth Amendment violation where driver gives consent during lawful traffic stop).

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion. [Cit.]” Richardson v. State, 276 Ga. 548, 553 (3) (580 SE2d 224) (2003). Since Ross cannot make such a strong showing, his ineffectiveness claim must fail.

(c) Ross argues that trial counsel was deficient in not objecting to the admission of state Exhibit 5, which was the cocaine allegedly sold by Ross on April 20, 2006, because the envelope containing the cocaine indicated that it had been recovered on April 18, 2006. Ross claims trial counsel should have objected to the admissibility of the exhibit based on this discrepancy in dates, reasoning that the state could not have established that it was the same cocaine that was seized and that there had been no tampering with the evidence. But such a chain of custody argument “goes to the weight and credit a factfinder assigns to the evidence, rather than to its admissibility.” (Citation omitted.) Bush v. State, 305 Ga. App. 617, 619 (3) (699 SE2d 899) (2010). Accordingly, an objection to the admissibility of the evidence would have been unavailing, and “[t]he failure to pursue a futile objection does not amount to ineffective assistance.” (Citation omitted.) Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008).

(d) Ross argues that trial counsel erred in not objecting to the state’s notice of its intent to seek recidivist sentencing because the notice was not given to the defense prior to the start of the trial. But that claim ignores trial counsel’s testimony at the motion for new trial hearing that he received the notice on the first day of trial before the jury was picked and that he discussed the notice with Ross because at that point there was still a plea offer from the state. Counsel further testified that he had been aware of Ross’ criminal history, that the state had provided him with a copy of Ross’ Georgia Crime Information Center report, and that there was nothing that surprised him in the state’s notice of its intent to introduce his prior record in aggravation of sentencing.

OCGA § 17-16-4 (a) (5) provides that “[t]he prosecuting attorney shall, no later than ten days prior to trial, or at such time as the court orders hut in no event later than the beginning of the trial, provide the defendant with notice of any evidence in aggravation of punishment that the state intends to introduce in sentencing.” (Emphasis supplied.) Here, although the state did not give notice ten days before trial, it clearly did give notice to Ross before the beginning of the trial. See Shindorf v. State, 303 Ga. App. 553, 557 (4) (694 SE2d 177) (2010) (trial court may permit the state to provide notice any time prior to trial; notice four days before trial timely). “The important requirement is that the defendant be given an unmistakable advance warning that the prior convictions will be used against him at sentencing so that he will have enough time to rebut or explain any conviction record.” (Citations and punctuation omitted.) Evans v. State, 290 Ga. App. 746, 748 (2) (660 SE2d 841) (2008). Given that trial counsel was aware of Ross’ criminal record, that he received the state’s notice prior to the start of the trial, that he was not surprised by its contents, and that Ross has made no showing that his prior convictions could have been rebutted or explained had counsel raised an objection to the timeliness of that notice, we find no ineffective assistance of counsel. See generally Gonzales v. State, 286 Ga. App. 821, 828 (3) (d) (650 SE2d 401) (2007).

Decided January 26, 2012.

Edgar A. Callaway, Jr., for appellant.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

2. Relying on the same argument discussed above in Division 1 (d), Ross contends that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 because the state’s notice of its intent to introduce evidence in aggravation of punishment was untimely. However, as noted above, the trial court may permit the state to provide notice to the defendant at any time before trial. Shindorf, supra. Moreover, the notice “was served on defense counsel on the first day of trial prior to the jury being sworn, and certified copies of the convictions were admitted without objection. Under these circumstances, any defects or untimeliness in the notice were waived.” (Citation omitted.) Howard v. State, 297 Ga. App. 316, 318 (2) (677 SE2d 375) (2009).

3. Ross contends that the trial court’s imposition of separate sentences for his current sale of cocaine and possession of cocaine with intent to distribute convictions is in conflict with OCGA § 17-10-7 (d), which provides that “[flor the purpose of this Code section, conviction of two or more crimes charged on separate counts of one indictment . . . shall be deemed to be only one conviction.” Ross misunderstands the meaning of that Code section, which applies to the use of prior convictions to enhance the punishment of repeat offenders. It does not apply to the trial court’s authority to impose separate sentences for Ross’ current convictions of two distinct drug offenses committed on different dates. “Because [Ross’] sentence was within the statutory range and because the law allows separate and consecutive punishment for separate criminal transactions, the trial court did not err in [sentencing Ross].” Simpson v. State, 310 Ga. App. 63, 64 (715 SE2d 675) (2011).

Judgment affirmed.

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


author: MCFADDEN, Judge.

text:
    A11A1975.
    CORMIER v. WILLIS.
    (722 SE2d 416)
   MCFADDEN, Judge.

This appeal is from the grant of summary judgment to a defendant in a dog-bite case. Because the evidence shows that the defendant neither owned nor kept the dog, we affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

(Citations and punctuation omitted.) Stolte v. Hammack, 311 Ga. App. 710 (716 SE2d 796) (2011).

So construed, the evidence shows that on the morning of July 2, 2009, Annie Cormier, an employee of a home healthcare provider, went to Joseph Willis’ home in Augusta, Georgia. Cormier had cared for Willis’ elderly mother-in-law for several years. Willis was not at home at the time because he was out of the state on vacation. But his 27-year-old daughter, Carmaleita Willis, was there, visiting from Atlanta. Carmaleita had her pit bull, named Kain, with her at the house. Carmaleita had gotten the dog several years earlier while attending college in Virginia.

On the morning of July 2, as Cormier sat in her car in the driveway, Kain was chained on the porch. But he slipped out of his collar, ran and jumped into Cormier’s car through the open front passenger window, and bit Cormier on the elbow. Cormier began honking the car horn, and Carmaleita Willis came outside and called for Kain. The dog immediately let go of Cormier’s arm, jumped out of the car and went to Carmaleita Willis.

Cormier sued both Joseph and Carmaleita Willis pursuant to OCGA § 51-2-7, which provides that “[a] person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured.” The trial court granted summary judgment to Joseph Willis, finding that he did not own or keep the dog as contemplated by OCGA § 51-2-7. Cormier appeals.

1. Cormier argues that the trial court erroneously failed to consider a local ordinance which purportedly establishes more stringent liability standards for dog owners than OCGA § 51-2-7. However, Cormier has not provided a record reference for the local ordinance, and Willis asserts that it is not in the record. Indeed, our review of the record does not reveal any copy of the local ordinance.

It is well established by numerous decisions of this court that judicial notice can not be taken by the superior court or this court of city or county ordinances, but they must be alleged and proved. The proper method of proving a city ordinance is by production of the original or of a properly certified copy. The record contains neither the original nor a properly certified copy of the [locally]promulgated document which purportedly contains the provisions which [Cormier] seeks to enforce judicially. The trial court would have been in error if it had ordered [Willis] to comply with the terms of an ordinance not properly before the court.

(Citations and punctuation omitted.) Thorsen v. Saber, 288 Ga. 18, 19 (1) (701 SE2d 133) (2010). Because the record does not contain proper proof of the local ordinance, we cannot consider it, and any argument based on its purported language provides no basis for reversing the trial court’s order. See id.

2. The trial court also did not err in finding that Joseph Willis was not the owner or keeper of the dog as contemplated by OCGA § 51-2-7. With regard to ownership, Cormier averred as fact in her complaint that the dog was owned by Carmaleita Willis, and that fact was confirmed by Carmaleita Willis in her answer to the complaint. “It is well established that a party may make admissions in judicio in their pleadings, . . . [and w]hat a party admits to be true in its pleadings may not subsequently be denied.” (Citations and punctuation omitted.) Kensington Partners v. Beal Bank Nevada, 311 Ga. App. 196, 196-197 (1) (715 SE2d 491) (2011). Thus, Cormier’s admission of fact in her complaint and Carmaleita Willis’ confirmation of that fact in her answer “constitute binding admissions in judicio. [Cit.]” Coosa Valley Technical College v. West, 299 Ga. App. 171, 177 (2) (682 SE2d 187) (2009). Moreover, Cormier made the same admission of ownership during her deposition, testifying that Kain “was Carmaleita’s dog.” Accordingly, there is no genuine issue of material fact as to ownership since the record establishes that the dog was owned by Carmaleita Willis. See Kensington Partners, supra (summary judgment affirmed based on admissions in judicio and other evidence).

As for Joseph Willis keeping the dog, Cormier’s

argument misses the mark. It was the owner of the dog, [Carmaleita Willis], who was managing the dog at the critical time. The dog was solely under [her] supervision when it bit [Cormier], [Joseph Willis] was not even home[, but was out of state for vacation,] on the day in question. It cannot be said, therefore, that [he] was the dog’s keeper at that time. [Cits.]

Decided January 26, 2012.

Martin C. Puetz, for appellant.

Carlock, Copeland & Stair, Christopher A. Whitlock, Charles C. Mayers, David W. Wallace, Raymond J. Doumar, for appellee.

Goodman v. Kahn, 182 Ga. App. 724, 725 (356 SE2d 757) (1987).

Cormier’s reliance on Johnston v. Warendh, 252 Ga. App. 674, 679 (5) (556 SE2d 867) (2001), to further argue that there is a triable issue as to whether Carmaleita Willis was acting as her father’s agent at the time of the incident is misplaced. Not only did Johnston, unlike this case, involve a local ordinance that was properly proved, but the triable agency issue in that case was whether the absentee owner of a dog had an agent keeping his dog inside a house while he was gone. Since, as recounted above, Carmaleita Willis is the owner of the dog, she was not acting as her father’s agent in keeping her own dog, and thus, Johnston is inapposite.

Judgment affirmed.

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


author: McFadden, Judge.

text:
    A11A1995.
    LEVERETT v. THE STATE.
    (722 SE2d 418)
   McFadden, Judge.

Mack Leverett appeals the order denying his motion to dismiss the indictment against him for violation of his constitutional right to a speedy trial. Because we conclude that the trial court did not abuse its discretion in weighing the relevant factors for determining whether there has been a constitutional speedy trial violation, we affirm.

Leverett was arrested on September 5, 2008. He was charged with possession of marijuana with intent to distribute and obstructing or hindering a law enforcement officer. Although the case appeared for trial in June 2010, it was not reached then. The case again was called for trial in July 2010, but defense counsel indicated a need for time to file additional motions, so the case was not tried. The case appeared on the August 2010 trial calendar, when the trial court heard the earlier filed motions, but it was not reached for trial. Leverett consented to a continuance from September through November 2010 because a state’s witness was unavailable due to family medical leave.

The case was scheduled for trial in January 2011, but the courts were closed because of inclement weather. The case was called for trial on February 7, 2011, but Leverett had retained new counsel who had a conflict, the trial of another case. The case was called for trial on February 14, 2011, but defense counsel’s conflicting trial had not ended. The case was specially set for trial on March 7, 2011; it was not tried then because Leverett filed this motion, the first time he raised the issue of his right to a speedy trial, and the court stayed the proceedings pending Leverett’s appeal of the denial of the motion to dismiss.

The template for deciding all constitutional speedy trial claims is laid out in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). The analysis has two stages.

In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation[,] whichever comes first[,] to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

(Citations and punctuation omitted.) Ferguson v. State, 303 Ga. App. 341, 342 (693 SE2d 578) (2010). The four factors to be considered in the case of presumptively prejudicial delay are (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. State v. Redding, 274 Ga. 831, 831-832 (561 SE2d 79) (2002). We review the trial court’s decision under an abuse of discretion standard. Id. at 832. And we defer to the trial court’s findings of fact and its weighing of disputed facts. State v. White, 282 Ga. 859, 861 (2) (655 SE2d 575) (2008).

1. The state concedes that the length of the delay, more than 30 months from Leverett’s September 5, 2008, arrest to the trial court’s March 7, 2011, denial of his motion to dismiss, is presumptively prejudicial. See Ward v. State, 311 Ga. App. 425, 428 (1) (715 SE2d 818) (2011) (finding 30-month delay presumptively prejudicial). See also Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626) (1994) (as the delay approaches one year, it is generally presumptively prejudicial). The trial court therefore properly proceeded to apply the Barker factors in the second stage of the analysis.

2. (a) After determining that the delay is presumptively prejudicial so as to trigger application of the four factors of Barker, the length of delay must be reconsidered as the first factor. Ruffin, 284 Ga. at 56-57 (2) (b) (i). “This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify.” (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 341 (2) (a) (680 SE2d 182) (2009).

Acknowledging that “there has been a substantial delay between the time of initial arrest and the time of arraignment and the time the case came on for trial,” the trial court weighed this factor against the state. The trial court did not abuse its discretion. See Ward, 311 Ga. App. at 428 (2).

(b) As for the second Barker factor, the reason for the delay, the trial court found that both the state and Leverett contributed to the delay, a finding supported by the record. And because “[tjhere is no evidence the state deliberately attempted to delay the trial in order to hamper the defense[,J [t]o the extent a portion of the delay can be attributed to the state, it is relatively benign.” (Citation and punctuation omitted.) Carraway v. State, 263 Ga. App. 151, 154 (2) (587 SE2d 152) (2003).

(c) The third Barker factor is the defendant’s assertion of the right to a 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).

[A] defendant may assert his constitutional right to a speedy trial at any time after he is arrested; he need not wait until indictment. However, once his constitutional right accrues, the defendant has the responsibility to assert it, and delay in doing so normally will be weighed against him.

(Citation omitted.) State v. Pickett, 288 Ga. 674, 676 (2) (c) (3) (706 SE2d 561) (2011).

The trial court found that Leverett was arrested on September 5, 2008, but did not file his motion to dismiss on speedy trial grounds until March 7, 2011. The trial court therefore weighed this factor against Leverett. The trial court did not abuse its discretion. Zeger v. State, 306 Ga. App. 474, 478 (3) (702 SE2d 474) (2010) (20-month delay in asserting right “is entitled to strong evidentiary weight against the defendant”) (citation and punctuation omitted). See also Ruffin, 284 Ga. at 64 (2) (b) (iii) (appellant must be “dogged” in the assertion of his speedy trial rights).

Leverett argues that any failure of his original appointed counsel to file a demand for trial should not be weighed against him. See State v. Moses, 301 Ga. App. 315, 320 (2) (c) (692 SE2d 1) (2009) (circumstances can mitigate a defendant’s delay in asserting his right to trial). But counsel’s failure to act is attributed to Leverett. State v. Hartsfield, 308 Ga. App. 753, 756 (1) (d) (711 SE2d 1) (2011).

(d) The trial court weighed the final Barker factor, prejudice to the defense, against Leverett. When evaluating the prejudice factor in the speedy trial analysis, courts must consider the “three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” (Citation omitted.) Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001).

The trial court found that Leverett did not suffer oppressive pretrial incarceration, as he was out on bond, a finding that Leverett does not challenge. Leverett argues that he suffered great anxiety and concern from the delay, as demonstrated by his decision to retain appellate counsel in spite of his limited financial resources. The trial court found, however, that there was no testimony or other evidence presented at the hearing regarding undue anxiety or concern, a finding supported by the record. See State v. Porter, 288 Ga. 524, 529-530 (2) (c) (4) (705 SE2d 636) (2011).

As for the most important third factor, see Nelloms, 274 Ga. at 181, Leverett argues that his defense is impaired because certain video footage is now unavailable. He asserts that a police officer used the footage to confirm a bystander’s account that the man the officer was seeking on the obstruction charge left the scene in a red Jeep. Leverett testified at the hearing on the motion to dismiss that his former attorney told him that the video was not relevant.

He also argues that his defense is impaired because he cannot contact certain witnesses, the three passengers of the Jeep he was driving in which the marijuana was found. Leverett testified that he only knew one passenger by nickname, his son’s friend, and that the passengers’ names were not listed in the discovery provided by the state. He testified that it is not possible for him to determine who was in his back seat. He argues that the passengers now cannot be made available to testify about who actually owned the marijuana found in the Jeep. At the hearing, he argued that these witnesses are crucial to his equal access argument.

In determining that the prejudice factor weighs against Lever-ett, the trial court found that Leverett failed to show any diligence in identifying the witnesses he says could assist him, and he made no offer of proof of what the witnesses would testify or how their testimony would be favorable. The trial court also found that Leverett did not show that he made any effort to obtain the video footage. The trial court’s factual findings are supported by the record. See Porter, 288 Ga. at 530 (2) (c) (4). Accordingly, the trial court did not abuse its discretion in concluding that the delay did not impair Leverett’s defense. See Bowling v. State, 285 Ga. 43, 47 (1) (673 SE2d 194) (2009) (“Given [defendant’s] generalized complaints regarding his witness . . . without any real showing of harm to his defense, it cannot be said that the trial court erred in discounting his claims.”) (citation omitted).

Decided January 26, 2012.

Hall & Hirsh, Daniel M. Hirsh, for appellant.

Daniel J. Porter, District Attorney, Elizabeth L. Chancey, Assistant District Attorney, for appellee.

In sum, the delay in bringing Leverett to trial

is outweighed by the facts that [Leverett] suffered little actual prejudice to [his] defense, suffered no unduly oppressive pretrial incarceration and waited a significant amount of time before asserting [his] right to a speedy trial. Under these circumstances, the trial court did not abuse its discretion by rejecting [Leverett’s] claim that [his] constitutional speedy trial rights had been violated.

(Citations omitted.) Carder v. State, 312 Ga. App. 61, 67 (2) (e) (717 SE2d 661) (2011).

Judgment affirmed.

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


text:
    A11A2096.
    WILLIAMS v. UNITED COMMUNITY BANK.
    (722 SE2d 440)
   McFadden, Judge.

Kevin A. Williams appeals from the trial court’s grant of summary judgment to United Community Bank (the Bank) in the Bank’s action against Williams and others to enforce a promissory note that Williams, among others, had guaranteed. Williams argues that the trial court erred in granting summary judgment to the Bank because the Bank was no longer a party in interest at the time of the ruling, having transferred its interest in the underlying indebtedness. Because Williams had not raised this argument at the time the trial court granted summary judgment, the trial court did not address it. Consequently, this appeal presents nothing for our review, and we must affirm.

The evidence of record on appeal shows the following. On May 26, 2009, Bella Montagna LLC executed a promissory note in favor of the Bank, and Williams executed a guaranty in which he unconditionally guaranteed payment of Bella Montagna’s indebtedness to the Bank under the note. Other persons and entities executed similar guaranties. Bella Montagna defaulted on the loan, and the Bank demanded payment from the guarantors, including Williams. The guarantors did not make the demanded payment to the Bank.

On July 12, 2010, the Bank filed an action on the note against Bella Montagna and the various guarantors, including Williams, and it subsequently moved for summary judgment. In January 2011, the trial court entered judgment against the defendants other than Williams. On April 19, 2011, the trial court entered summary judgment against Williams in the order on appeal in this case.

On May 3, 2011, Williams moved the trial court to set aside its summary judgment order, asserting that on April 18, 2011, one day before the court entered its order, the Bank transferred its interest in the indebtedness underlying the promissory note to another entity. On May 19, 2011, however, Williams filed a notice of appeal to this court, divesting the trial court of jurisdiction to consider his motion to set aside pending the appeal. See McConnell v. Wright, 280 Ga. App. 546, 547 (634 SE2d 495) (2006) (filing of notice of appeal divests trial court of jurisdiction to rule on outstanding motion to set aside), rev’d on other grounds, 281 Ga. 868 (644 SE2d 111) (2007). See also OCGA § 5-6-39 (a) (1), (c) (allowing the trial court to grant one extension of time for the filing of a notice of appeal).

The sole error enumerated by Williams is that summary judgment was improperly issued in favor of the Bank because the Bank was not the real party in interest at the time the summary judgment was entered. Williams does not question the substantive merits of the trial court’s decision to grant summary judgment. See generally Nelson v. Bd. of Regents &c., 307 Ga. App. 220, 226 (2), n. 22 (704 SE2d 868) (2010) (claims of error relating to substantive merits of order granting summary judgment are deemed abandoned on appeal where appellant fails to address them).

But we are not in a position to review whether Williams’s real-party-in-interest argument precludes the grant of summary judgment to the Bank. Neither that question nor any evidence related thereto had been presented to the trial court when it ruled on the summary judgment motion, and consequently the trial court did not consider that question in ruling on the motion. “[Wjhen this Court reviews a decision of a trial court on a motion for summary judgment, it sits as a court for the correction of errors of law.” (Citation omitted.) Strength v. Lovett, 311 Ga. App. 35, 44 (2) (b) (714 SE2d 723) (2011). “[A]n error of law has as its basis a specific ruling made by the trial court. There having been no rulings by the trial court on the issues raised on appeal, there are no rulings to review for legal error.” (Citation and punctuation omitted.) Id. And although in certain instances an appellate court can review a record and determine that a summary judgment ruling was right for some reason other than that given by the trial court, an appellate court should not consider whether the trial court was “wrong for any reason.” Id. Accordingly, we will not consider for the first time on appeal Williams’s real-party-in-interest argument. See Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 648 (6) (b) (706 SE2d 652) (2010).

Decided January 26, 2012.

Berman, Fink & Van Horn, Charles H. Van Horn, Kristin N. Zielmanski, for appellant.

Stites & Harhison, Melinda Agee, Catherine M. Banich, for appellee.

Judgment affirmed.

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


author: Dillard, Judge.

text:
    A11A2130.
    CALLOWAY v. THE STATE.
    (722 SE2d 422)
   Dillard, Judge.

Robert Calloway was convicted by a jury of kidnapping, aggravated assault, aggravated battery, and false imprisonment. On appeal, Calloway contends that (1) he was denied the trial counsel of his choosing, (2) he was constructively denied trial counsel due to his strained relationship with appointed counsel, and (3) the evidence was insufficient to sustain his conviction for kidnapping. For the reasons set forth infra, we affirm Calloway’s convictions.

Viewed in the light most favorable to the jury’s verdict, the record shows that on the evening of August 28, 2001, Calloway became angry with the victim—his girlfriend—after she returned home from visiting another male friend. As her young sons slept upstairs, Calloway unleashed his fury on the victim by repeatedly stabbing her in the back and neck with a pocket knife.

When this attack ceased, Calloway realized what he had done, panicked, and called his mother. After speaking with his mother, Calloway told the victim that he would drive her to the hospital. And although the victim wanted to call an ambulance and did not want to leave her children alone, Calloway insisted that she would reach the hospital faster if he drove. The victim finally agreed to this arrangement and got inside Calloway’s truck.

As the two were driving, the victim realized that Calloway had passed the turn for the hospital. And when she asked why he had done so, Calloway responded that he was taking her to his mother’s house. This statement proved to be false, and Calloway eventually explained that he intended to kill the victim and himself. Calloway then drove to a semi-deserted road, where he pulled over and again took out the knife.

The victim unsuccessfully tried to wrest the knife from Callo-way’s hands before fleeing from the truck when she spotted a passing car. But the other vehicle did not stop, and Calloway chased and caught the victim before again stabbing her numerous times in the back and throat. Consequently, she fell to the ground and lay motionless before Calloway dragged her farther into a ditch and left the scene, believing her to be dead.

Calloway then drove to the home of a friend, who observed a red substance—presumably blood—on his hands, shorts, and shoes. When Calloway began to explain that he had murdered his girlfriend, the friend told him to “go and do what you’ve got to do” and then called the police after Calloway departed.

Meanwhile, the victim spent the remainder of the night in the ditch, suffering bug bites and bleeding from her many wounds. But notwithstanding this perilous predicament, she somehow summoned the strength to roll over three times into a position that made her body more visible from the road. And the next morning, she was discovered by a passerby who happened to notice her body. The victim was then transported to a hospital and arrived in severe shock, having lost nearly half of her blood volume. As a result of the attack, she also sustained a lacerated trachea tube and pharynx, a puncture wound to the hand, nerve damage to her face that caused permanent paralysis of the muscles around her left eye, and a collapsed lung.

Thereafter, Calloway was arrested, brought to trial, and convicted by a jury of one count of kidnapping, one count of aggravated assault, one count of aggravated battery, and one count of false imprisonment. This appeal follows.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” And on appeal, 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.” With these guiding principles in mind, we will now address each of Calloway’s enumerations of error in turn.

1. Calloway first contends that he was denied the counsel of his choosing when the trial court declined to continue the trial proceedings after he indicated that he had retained new counsel. We disagree.

The Georgia Constitution provides that “[e]very person charged with an offense against the laws of this state shall have the privilege and benefit of counsel. . . .” Our Supreme Court has construed this constitutional provision to “confer upon every person indicted for [a] crime a most valuable and important constitutional right, which entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.” Whether a defendant has used “reasonable diligence” is a question of fact, and it is within a trial judge’s discretion to either grant or deny a requested continuance when retained counsel is absent. We will reverse the judge’s decision in this regard only when there has been an abuse of that discretion.

And here, the record shows that Calloway was represented at trial by an appointed attorney—notably, his third such appointed counsel. On the first day of trial, after a jury had been empaneled and just as court was prepared to reconvene and the trial was set to begin, Calloway told the judge that he wished to dismiss his counsel because he was displeased with his representation. When pressed on this matter, Calloway said that he wanted to be represented by paid counsel and, more specifically, by Bill Murray, a local attorney.

Calloway explained that his family had met with Murray during the preceding lunch break and that, while Murray was not currently present, he would come to court. The judge then questioned Callo-way as to why he had waited so long to retain paid counsel when he had been incarcerated for ten months and had known since the previous week that he would be going to trial. And the only explanation offered by Calloway was that he had been unable to afford paid counsel sooner.

The trial court then explained that while Calloway could certainly be represented by any attorney of his choosing, the case would still be tried that day as scheduled. The court further explained that it would give Murray a few minutes to arrive and to confirm that he had indeed been retained by Calloway. Murray’s wife was apparently in court and indicated that her husband was at his office but would be on the way; however, when the court questioned Mrs. Murray as to whether her husband had actually been retained by Calloway, she replied that her husband had told Calloway’s family that “they would have to talk to the court before he could give them a definite answer.” Hearing this, the court decided to proceed with the trial, noting that “[i]f there was some other attorney involved in this case, that other attorney had an obligation to be here.”

Calloway now argues that the trial court’s decision to proceed with the trial denied him the counsel of his choosing. But the record reflects that Calloway failed to use reasonable diligence in obtaining substitute counsel. Indeed, the trial court stated its belief that because of Calloway’s timing, his requested continuance was made for purposes of delay; and the record supports the court’s conclusion. Specifically, Calloway’s family met with Murray for the first time during the lunch break after a jury had been empaneled and just prior to the start of trial. Further, Murray was never formally retained, as evinced by his wife’s statement to the court. Accordingly, the trial court did not abuse its discretion in denying Callo-way’s request for a continuance and instead proceeding with Callo-way’s appointed counsel, who was prepared for trial.

2. Calloway next contends that he was constructively denied counsel due to his strained relationship with his appointed attorney. We disagree.

Ordinarily, to prove ineffective assistance of counsel, Calloway would need to show that his counsel’s performance was deficient and that his defense was prejudiced by this deficient performance. Nevertheless, there are some situations in which a court will presume prejudice; however, these are “extremely limited and apply in only a narrow range of circumstances.” Indeed, there are only three instances in which a defendant may rely upon a presumption of prejudice:

(1) an actual or constructive denial of counsel, (2) government interference with defense counsel, and (3) counsel who labors under an actual conflict of interest that adversely affects his performance.

Calloway argues that the first instance applies in his case—namely, that a strained relationship with his appointed attorney amounted to a constructive denial of counsel. But constructive denial of counsel is only present “when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” And this, Calloway failed to show.

The record reflects that Calloway’s counsel subjected the prosecution’s case to meaningful adversarial testing, including cross-examining the State’s witnesses, moving for a directed verdict on all four counts, and making a closing argument on Calloway’s behalf. Accordingly, Calloway was not constructively denied counsel, and this enumeration is wholly without merit.

3. Finally, Calloway contends that the evidence of kidnapping was insufficient to sustain his conviction. We disagree.

A person commits the offense of kidnapping when he or she “abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” Calloway argues, however, that there was no evidence the victim was held against her will because she testified at trial that she willingly got into his truck after the initial assault and tried to keep him calm during the ride. In response, the State contends that the kidnapping occurred when Calloway dragged his girlfriend away from the side of the road and down into a ditch after she attempted to flee from his truck.

Under either set of circumstances, the record reflects sufficient evidence to support a conviction for kidnapping. Indeed, even if the victim’s entry into Calloway’s truck was voluntary, the testimony at trial revealed that she did so under the mistaken belief that Calloway would take her to the hospital, and the victim attempted to escape further attack after Calloway stopped on the side of the road. At that point, Calloway caught her, again stabbed her numerous times, and thereafter dragged her by the legs into a ditch—effectively concealing her from passing traffic—when she was unable to move or otherwise resist. Thus, despite Calloway’s contention, the jury was presented with sufficient evidence to find him guilty of kidnapping under either set of facts, no matter how willing the victim might have been to initially remain in Calloway’s presence.

Decided January 26, 2012.

Robert E. Perrine, Jr., for appellant.

PlezH. Hardin, District Attorney, Wesley A. Lambertus, Assistant District Attorney, for appellee.

Accordingly, for all the foregoing reasons, we affirm Calloway’s convictions.

Judgment affirmed.

Mikell, P J., and Boggs, J., concur.

        Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       OCGA § 16-5-40 (a) (“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.”).

       OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .”).

       OCGA § 16-5-24 (a) (“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by . . . seriously disfiguring his or her body or a member thereof.”).

       OCGA § 16-5-41 (a) (“A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”).

        Powell, 310 Ga. App. at 144 (punctuation omitted).

        Id. (punctuation omitted).

       Ga. Const. Art. I, § I, ¶ XIV; see also U. S. Const. Amend. VI.

        Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983) (punctuation omitted).

        Id.

        Id.

       The record suggests that Calloway’s prior counsel withdrew due to having conflicts with Calloway.

        Compare Shaw, 251 Ga. at 109 (defendant sought new counsel 76 days before commencement of trial); Turman v. State, 272 Ga. App. 570, 571 (613 SE2d 126) (2005) (physical precedent only) (defendant sought new counsel the week before trial).

        Compare Shaw, 251 Ga. at 112 (facts demonstrated that defendant’s lack of counsel was the fault of defendant’s attorneys and that defendant’s request was not a mere delaying tactic); Turman, 272 Ga. App. at 577 (1) (holding that trial judge erred in proceeding to trial when defendant’s counsel was hospitalized and circumstances were beyond defendant’s control).

        Compare Shaw, 251 Ga. at 109 (defendant paid partial retainer fee and signed contract; defendant’s former counsel informed court that he was no longer attorney of record; and attorney testified that although defendant still owed the remainder of retainer fee, defendant honestly believed attorney would represent him at trial); Turman, 272 Ga. App. at 571 (defendant retained new attorney who filed a notice of appearance and several motions); Long v. State, 119 Ga. App. 82, 84-85 (1) (166 SE2d 365) (1969) (trial court erred in denying defendant’s motion for continuance when he had employed counsel who was prepared for trial but who was not present, although counsel’s whereabouts were known, and defendant was forced to proceed with unprepared appointed counsel).

        See Harrison v. State, 298 Ga. App. 870, 873 (3) (681 SE2d 252) (2009) (“Ordinarily, to prove ineffective assistance, [the defendant] would be required to show that his trial counsel’s performance was deficient and that this deficient performance prejudiced his defense.”).

        Smith v. State, 312 Ga. App. 174, 175 (1) (718 SE2d 43) (2011) (punctuation omitted).

        Id. (punctuation omitted); see also State v. Heath, 277 Ga. 337, 338 (588 SE2d 738) (2003) (recognizing that the Supreme Court of the United States identified the same three instances in which prejudice will be presumed (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984))).

        Smith, 312 Ga. App. at 176 (1); see also Cuvas v. State, 306 Ga. App. 679, 682 (1) (d) (703 SE2d 116) (2010) (“[T]he attorney’s failure must be complete and must occur throughout the proceeding and not merely at specific points.” (punctuation omitted)).

        See Cotton v. State, 308 Ga. App. 645, 648 (708 SE2d 392) (2011) (no constructive denial when counsel objected on numerous occasions, cross-examined witnesses, and made appropriate motions); Cuvas, 306 Ga. App. at 682 (1) (d) (no constructive denial when, inter alia, counsel developed a theory of the case, cross-examined witnesses, argued to the jury); Harrison, 298 Ga. App. at 874 (3) (no constructive denial when counsel cross-examined witnesses, made appropriate objections, and attempted to keep certain pieces of evidence from jury).

       OCGA § 16-5-40 (a).

       Although closing arguments were not transcribed, the State explained during sentencing that it had argued to the jury that the basis for false imprisonment was the victim’s ride in the truck and that Calloway’s act of dragging the victim into the ditch served as the basis of the kidnapping. Calloway did not object to the State’s description of its closing argument. We note that the indictment did not detail the underlying facts giving rise to the charges for kidnapping and false imprisonment, but Calloway has never challenged the sufficiency of the indictment. See Adkins v. State, 279 Ga. 424, 426 (2) (614 SE2d 67) (2005) (“[A] motion for directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment. A motion for directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.” (punctuation omitted)); see also Tibbs v. State, 211 Ga. App. 250, 251 (1) (438 SE2d 706) (1993) (“[T]he evidence at trial nevertheless must be sufficient to allow a rational factfinder to conclude that the defendant is guilty beyond a reasonable doubt of the offense charged.”).

        See Winfrey v. State, 286 Ga. App. 450, 452 (1) (a) (649 SE2d 561) (2007) (despite victim’s initial willingness to accompany defendant, jury was presented with sufficient evidence of kidnapping when defendant held gun to victim’s face, victim attempted escape, and defendant dragged victim back to vehicle); Powell v. State, 249 Ga. App. 344, 346 (2) (b) (548 SE2d 447) (2001) (despite victim’s testimony that she willingly accompanied defendant, evidence that defendant injured and dragged and pulled victim sufficient for jury to find unwillingness). Cf. Pruitt v. State, 279 Ga. 140, 143 (4) (611 SE2d 47) (2005) (in addressing issue of venue for kidnapping, explaining that “the question is at what point could the jury determine, beyond a reasonable doubt from the evidence, that [the victim] was being held against his will” and looking to circumstances of defendant’s behavior and victim’s response to find unwillingness).

        See Tolbert v. State, 313 Ga. App. 46, 55 (3) (720 SE2d 244) (2011) (sufficient evidence of kidnapping when defendant dragged victim by throat through house); Curtis v. State, 310 Ga. App. 782, 786 (1) (714 SE2d 666) (2011) (sufficient evidence of kidnapping when defendant dragged victim into house, substantially isolating her from rescue and increasing risk of harm); Hall v. State, 308 Ga. App. 858, 862 (1) (709 SE2d 348) (2011) (physical precedent only) (sufficient evidence of kidnapping when defendant substantially isolated victim from others by pulling her body and actually preventing her rescue).

       We note that Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), was decided after Calloway was convicted but before he filed his notice of appeal. Thus, according to the “pipeline” rule, Garza applies to this case. See, e.g., Freeman v. State, 269 Ga. 337, 339 (1) (c) (496 SE2d 716) (1998). See generally Hall, 308 Ga. App. at 861 n.9 (1) (providing brief history of Garza, the subsequent amendment to the kidnapping statute, and the “pipeline” rule for Garza cases). Calloway, however, has not made a Garza challenge. Nevertheless, the evidence is sufficient to sustain his conviction. See supra notes 22 to 24 and accompanying text.


text:
    A11A2139.
    BROWN v. THE STATE.
    (722 SE2d 439)
   MCFADDEN, Judge.

Acting pro se, Willie Brown appeals from the trial court’s order of nolle prosequi on his indictment on a theft by taking charge. He enumerates the following error in his appellate brief: “The trial court erred by failing to conduct a hearing to determine whether Brown requested or qualified to receive alleged indigent counsel (public defender) services.” He does not, however, include in his brief any statement of facts, record citation, argument or citation of authority supporting this claimed error, or statement of how the error was preserved for appeal.

Decided January 26, 2012.

Willie W. Brown, pro se.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

Pursuant to Court of Appeals Rule 25 (a), an appellant’s brief must contain, among other things, a statement of material facts relevant to the appeal, the citation of such parts of the record essential to consideration of the errors complained of, and a statement of the method by which each enumeration of error was preserved for consideration. Court of Appeals Rule 25 (c) (2) (i) expressly requires that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” And Court of Appeals Rule 25 (c) (2) provides that “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”

Brown’s appellate brief wholly failed to support his enumerated error as required by our court rules or otherwise to comport with our court rules regarding the structure and content of briefs. Consequently, we deem the claim of error abandoned, and we will not consider it. Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007).

Judgment affirmed.

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


text:
    A11A2170.
    NEXGEN CUMMING, LLC et al. v. STATE BANK AND TRUST COMPANY.
    (722 SE2d 428)
   McFADDEN, Judge.

State Bank and Trust Company (“the Bank”) applied for confirmation of a nonjudicial foreclosure sale on property securing a loan to Nexgen Cumming, LLC and guaranteed by, among others, Premium Investment Properties, LLC and Rajeshwar D. Sharma. The trial court entered an order confirming the sale. Nexgen Cumming, Premium Investment Properties, and Sharma (collectively, “Nexgen”) appeal on the ground that the Bank failed to show that it properly advertised the sale. We find that the trial court did not err in admitting into evidence at the confirmation hearing a publisher’s affidavit, the contents of which, along with other evidence presented at the hearing, authorized the court to find that the Bank met the advertising requirement. Accordingly, we affirm.

“The trial court is the trier of fact in a confirmation proceeding, and [we] will not disturb its findings if there is any evidence to support them. We are not, however, bound by the trial court’s conclusions of law, which are subject to de novo review.” (Citations and punctuation omitted.) TKW Partners v. Archer Capital Fund, 302 Ga. App. 443 (691 SE2d 300) (2010).

Pursuant to OCGA § 44-14-161 (c), the trial court shall “pass upon the legality of the notice, advertisement, and regularity of [a nonjudicial foreclosure] sale.” A nonjudicial foreclosure sale must be advertised in the same manner as a judicial foreclosure sale. OCGA § 44-14-162 (a). That manner is set forth in OCGA §§ 9-13-140 (a) and 9-13-141, which provide, among other things, that notice of the sale shall be published once a week for four weeks in the legal organ for the county.

At the confirmation hearing, the Bank tendered a publisher’s affidavit, which stated that a notice of publication regarding the foreclosure sale was published four times in the Forsyth County News on July 7, 14, 21, and 28, 2010. The notice of publication attached to the affidavit, however, reflected that it had been published on July 9, 14, 21, and 28, 2010. The trial court admitted the publisher’s affidavit into evidence over Nexgen’s objection.

The Bank also presented testimony of the paralegal who conducted the foreclosure sale. She identified the publisher’s affidavit and testified that she had received it from the Forsyth County News. She further testified that the law firm for which she worked asked the Forsyth County News to publish the notice of publication attached to the publisher’s affidavit for four consecutive weeks and that the notice, in fact, was published in that newspaper for four consecutive weeks in July 2010, although she was unsure whether it was first published on July 7 or on July 9. And she testified that on August 3, 2010, she conducted the foreclosure sale at the Forsyth County Courthouse.

In its order confirming the foreclosure sale, the trial court concluded:

All advertisements were conducted in accordance with Georgia law and procedures. Although there was a discrepancy between the ad itself and the publisher’s affidavit as to one particular publication date, the testimony was unre-futed that the advertisement ran four (4) times in the four (4) weeks immediately preceding the foreclosure sale. Thus, the foreclosure advertisements met the requirements of OCGA § 9-13-140 and § 9-13-141.

Decided January 26, 2012.

Mills & Hoopes, Timothy S. Walls, for appellants.

Quirk & Quirk, Joseph P. Farrell, Christopher M. Gant, for appellee.

1. Nexgen argues that the trial court erred in admitting the publisher’s affidavit into evidence because it contained hearsay and was not properly authenticated. But we have previously found no error in the admission of publisher’s affidavits over hearsay or authenticity objections where, as here, a witness testified at the hearing that he or she caused the foreclosures to be advertised in the legal organ of the county at issue, identified the publisher’s affidavits, and affirmed that the advertisements ran four times during the month that preceded the foreclosure. See Belans v. Bank of America, 306 Ga. App. 252, 256 (3) (701 SE2d 889) (2010); Stepp v. Farm & Home Life Ins. Co., 222 Ga. App. 257, 258-259 (2) (474 SE2d 108) (1996). Under such circumstances, we have concluded that publisher’s affidavits are “competent proof of the facts recited therein, namely the contents of the advertisement and the dates of publication.” Stepp, 222 Ga. App. at 259 (2). We disagree with Nexgen’s contention that discrepancies about one of the specific publication dates should preclude admission of the publisher’s affidavit. Instead, the court as trier of fact could consider any such discrepancies in determining the weight of the evidence.

2. Nexgen argues that, in light of the discrepancies about one of the specific publication dates, the court erred in finding that the Bank had met the statutory advertising requirements. But both the publisher’s affidavit and the paralegal’s testimony supported the trial court’s factual finding that the notice was published once a week for four consecutive weeks. We discern no error. See TKW Partners, 302 Ga. App. at 443.

Judgment affirmed.

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


text:
    A11A2291.
    HOGUES v. THE STATE.
    (722 SE2d 430)
   McFadden, Judge.

Aloysius Ignatius Hogues appeals from his conviction for felony theft by receiving stolen property. Because the evidence was sufficient to support the conviction and the trial court did not err in admitting Hogues’s prior felony convictions to impeach him, we affirm.

1. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) Jackson v. Virginia, 443 U. S 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that Laurel Mason employed a residential cleaning service during the summer of 2006. The owner of the cleaning service sometimes brought Hogues with her to clean Mason’s house, including in July and August 2006.

In July 2006, Mason could not locate a ruby and diamond ring, which she thought she had misplaced. The following month, on a day when Hogues had been in the house cleaning, Mason noticed that a second ring was missing; she had worn that ring the previous evening. Mason then began looking for a third ring, which she determined also was missing.

Mason’s husband notified both the police and the cleaning service owner about the missing rings. The cleaning service owner confronted Hogues, who showed her a ruby and diamond ring but claimed that it belonged to him, not Mason. Because the ring that Hogues showed her matched the description of one of the missing rings, the cleaning service owner notified the police, who took custody of the ring. Mason’s husband recovered the ring from the police and at trial identified it as belonging to Mason. An appraiser estimated its value at $5,200.

Hogues testified at trial that the ring he showed the cleaning service owner was his property, that he had purchased it at a store in a shopping mall in 2002 or 2003, and that it was not the same ring as that identified by Mason’s husband at trial. A friend of Hogues also testified that Hogues had purchased a ruby and diamond ring that was different than the ring identified at trial.

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

OCGA § 16-8-7 (a). A person convicted of this offense may be punished as for a felony if the property which was the subject of the theft exceeded $500 in value. OCGA § 16-8-12 (a) (1).

Contrary to Hogues’s arguments, the jury was authorized to find beyond a reasonable doubt that a ruby and diamond ring exceeding $500 in value had been stolen from Mason’s house, that Hogues had acquired possession of it, and that he knew or should have known it was stolen. See DeLong v. State, 270 Ga. App. 173, 174 (1) (606 SE2d 107) (2004). Although Hogues asserted that the ring found in his possession did not belong to Mason, this was a question for the jury as the trier of fact, and the jury had no obligation to believe Hogues’s claim. See id. at 174-175 (1).

2. Hogues argues that the court erred in admitting prior felony convictions to impeach him. Pursuant to OCGA § 24-9-84.1 (a) (2),

[f]or the purpose of attacking the credibility of . . . the defendant, if the defendant testifies . . . [e]vidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant.

The trial court must make express findings regarding the balancing test prescribed in the statute. Carter v. State, 303 Ga. App. 142, 145 (2) (692 SE2d 753) (2010); Quiroz v. State, 291 Ga. App. 423, 428 (4) (662 SE2d 235) (2008).

(a) Hogues argues that the trial court did not conduct the proper balancing test or make the required statutory findings on the record. We disagree. When the prior conviction evidence was introduced at trial, the court found that “the probative value of admitting the evidence outweigh[ed] its prejudicial effect.” In its order denying Hogues’s motion for new trial, however, the court found that “the probative value of each of the convictions substantially outweighed any prejudicial effect and the convictions were properly admitted.” (Emphasis supplied.) The court also made findings in that order regarding the kind of felonies involved in the prior convictions, the dates of the prior convictions, and the importance of Hogues’s credibility in the case. See Quiroz, 291 Ga. App. at 428 (4). “[A]s long as the trial court makes express findings on this issue [of the prior convictions’ admissibility], even if made in an order on a motion for new trial, . . . the intent of OCGA § 24-9-84.1 is satisfied.” (Emphasis supplied.) Carter, 303 Ga. App. at 146 (2).

(b) Citing Clements v. State, 299 Ga. App. 561 (683 SE2d 127) (2009), Hogues also argues that the court “should have deemed the convictions inadmissible” under OCGA § 24-9-84.1 because the crimes involved in the prior convictions (burglary and criminal damage to property) did not involve dishonesty. Clements, however, concerned whether a prior misdemeanor conviction could be used to attack a witness’s credibility under OCGA § 24-9-84.1 (a) (3), which provides that such conviction shall be admitted if the crime “involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense.” See Clements, 299 Ga. App. at 561-562 (1). But OCGA § 24-9-84.1 (a) (2), which applies to prior felony convictions such as those at issue in this case, does not require that the crimes involve dishonesty or making a false statement. See Whitaker v. State, 283 Ga. 521, 522-523 (2) (661 SE2d 557) (2008); Wilkes v. State, 293 Ga. App. 724, 725-726 (2) (667 SE2d 705) (2008). And we find no abuse of discretion in the court’s determination, under the circumstances of this case, that the probative value of evidence of the prior convictions substantially outweighed their prejudicial effect. See Hopkins v. State, 309 Ga. App. 298, 300 (1) (709 SE2d 873) (2011) (defendant charged with theft failed to show that court abused its discretion in admitting evidence of prior burglary conviction, where defendant’s credibility as to his intent to commit crime was highly relevant to jury’s decision).

Decided January 26, 2012.

Clark & Towne, Jessica R. Towne, for appellant.

Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A11A2344.
    SALINAS v. THE STATE.
    (722 SE2d 432)
   Miller, Judge.

Following a jury trial, Jose David Salinas was convicted of trafficking in marijuana (OCGA § 16-13-31 (c)), possession of marijuana with intent to distribute (OCGA § 16-13-30 (j) (1)), and possession of marijuana (OCGA § 16-13-30 (a)). Salinas filed a motion for new trial, which the trial court denied. On appeal, Salinas contends that the trial court erred in allowing the law enforcement officers to testify as experts in the identification of marijuana. He further argues that the evidence was insufficient to support his trafficking in marijuana and possession of marijuana with intent to distribute convictions. We discern no error and affirm.

The record shows that Salinas was jointly indicted with his co-defendants, Daniel Park and Justin Wilson, for the drug offenses. Each of the co-defendants was convicted during separate jury trials. In Park v. State, 308 Ga. App. 648 (708 SE2d 614) (2011), we affirmed Park’s conviction. In Wilson v. State, 312 Ga. App. 166 (718 SE2d 31) (2011), we affirmed Wilson’s conviction. The evidence adduced during Salinas’s trial was essentially the same as that presented at the trial of his co-defendants. Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the trial evidence showed as follows:

[O]n April 4, 2008, a suspicious package addressed to [the] residence [of Parks and Wilson] in Hall County was misdirected to [their] neighbor. The package was a medium-sized box bearing the name “Abby.” After retrieving the package, the neighbor noticed that the package [“smelled funny and was kind of soggy”]. . . . [T]he neighbor took [the package] to her father for his inspection. When her father opened the package, they observed a . . . substance wrapped in plastic. They suspected that the substance was marijuana and called the police.
The responding officers took custody of the package and launched an investigation. The investigating detective identified the substance in the package as marijuana based upon his training and experience. Subsequent testing of the substance further confirmed that it was marijuana, weighing 12.46 pounds.
On the same afternoon that the package was received, the officers arranged a controlled delivery to the address that was listed on the package. An investigator, disguised as a postal carrier, made the delivery, while other undercover officers provided backup and surveillance nearby. When the investigator knocked on the door to the residence, . . . Wilson answered. The investigator asked Wilson if “Abby” was present. Wilson responded, “no . . . but they were expecting the package and he would accept delivery of it.” Wilson signed the delivery form, using a fictitious name, and took possession of the package containing the drug contraband. When Wilson attempted to take the package inside the residence, the investigator gave the takedown signal to the other agents and secured the package from Wilson’s possession. Wilson was placed on the ground and was detained in handcuffs.
Wilson was arrested[.]
Park arrived at the residence shortly thereafter. The officers arrested Park and . . . received Park’s consent to search . . . his bedroom. . . . During the search of Park’s bedroom, the officers seized digital scales, along with the marijuana grinder, marijuana stems, and plastic baggiest.]
Park . . . assisted in the investigation by contacting Salinas on his telephone while the officers listened and recorded the conversation. During the conversation, Park advised Salinas that the drug package had been delivered to the residence, and Salinas stated that he would come to the residence to retrieve it. When Salinas arrived at the residence, he was arrested.

(Punctuation omitted.) Park, supra, 308 Ga. App. at 648-650.

Following Salinas’s arrest, he was advised of his rights under Miranda, Salinas gave a statement, admitting that the marijuana belonged to him.

1. Salinas contends that his drug convictions should be reversed since the trial court erred in allowing the law enforcement officers to testify as experts in the identification of marijuana. We discern no error.

It is well established that expert testimony is not necessary to identify a substance, including drugs. And even if police officers are not formally tendered as expert witnesses, if an adequate foundation is laid with respect to their experience and training, their testimony regarding narcotics is properly admitted. . . . An expert is one whose habits and profession endow him or her with a particular skill in forming an opinion on the subject matter in inquiry. This Court has recognized such a combination of training and experience as sufficient to qualify one as an expert witness.

(Citations and punctuation omitted.) Atkinson v. State, 243 Ga. App. 570, 572 (1) (531 SE2d 743) (2000).

In this case, the trial court admitted the opinion testimony of four investigating officers who positively identified the substance in the package as being marijuana based upon their visual and olfactory examinations of the substance. The trial testimony established that each officer had become familiar with the characteristics of marijuana and could identify it based upon his knowledge and experiences in law enforcement. The testimony established that each officer had prior experience in handling numerous drug cases and that each had extensive contact with marijuana on prior occasions. The officers testified based upon their training and experience that the substance in the package smelled and looked like marijuana. In light of the testimony establishing the officers’ training and experience, the trial court was within its discretion to find that a sufficient foundation had been laid to allow the officers to state their opinion that the substance in the package was marijuana. See Thurmond v. State, 304 Ga. App. 587, 589 (1) (a) (696 SE2d 516) (2010) (officer was qualified to identify the drug substance as cocaine in light of his training and experience in narcotics investigations); Millwood v. State, 166 Ga. App. 292, 293 (3) (304 SE2d 103) (1983) (trial court did not abuse its discretion in admitting officer’s opinion testimony that the drug substance was marijuana since the officer had training and experience in evaluating marijuana).

Salinas nevertheless claims that the officers’ testimony was inadmissible since there had been no showing pursuant to Harper v. State, 249 Ga. 519, 524-526 (1) (292 SE2d 389) (1982), that their visual and olfactory identification techniques had reached a scientific stage of verifiable certainty. At trial, however, Salinas failed to object to the officers’ testimony on this ground. “[I]n order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground.” (Citations and punctuation omitted.) Shafer v. State, 285 Ga. App. 748, 750 (2) (647 SE2d 274) (2007). Since Salinas did not object on this specific ground, his claim has been waived. Id.

But even if Salinas’s claim had been preserved, it was without merit. “The fatal flaw in [Salinas’s] argument on this position is that although the [officers] were presented as experts, it was apparent that their testimony did not deal with scientific principles but with observation ... of [a] physical object[ ], with matters not of science but of skill and experience.” (Citation omitted.) Belton v. State, 270 Ga. 671, 674 (4) (512 SE2d 614) (1999). Since the officers’ observations were not a matter of scientific principle or technique, the Harper standards did not apply. Id. Moreover, we have held that “[t]he expert opinions of the officers — based on visual observation, and sometimes feel or smell — plus that circumstantial evidence is enough, even absent conclusive scientific testing.” Jones v. State, 268 Ga. App. 246, 249 (1) (601 SE2d 763) (2004).

More importantly, notwithstanding the officers’ testimony, the substance in the package was identified as marijuana through the testimony of an investigator who tested the drug substance. The investigator testified that he was certified through the Georgia Bureau of Investigation (“GBI”) to test marijuana. Drug testing was a part of the investigator’s regular duties, and he had performed at least 60 tests in prior cases. The investigator was admitted, without objection, as an expert in marijuana testing and analysis. The investigator described his testing procedures, which included examining a sample of the substance under a microscope and performing chemical testing procedures. The tests confirmed that the substance was marijuana.

Thus, to the extent that the officers’ testimony was merely cumulative of the investigator’s identification of the substance as marijuana based upon scientific drug testing procedures, Salinas’s challenge to the admissibility of the officers’ testimony fails to present a basis for reversal. “Evidence which is cumulative of other legally admissible evidence of the same fact, renders harmless admission of incompetent evidence.” (Citation and punctuation omitted.) Taylor v. State, 263 Ga. App. 420, 423 (3) (587 SE2d 791) (2003).

2. Salinas further contends that the evidence was insufficient to support his convictions for trafficking in marijuana and possession of marijuana with intent to distribute. Again, we disagree.

OCGA § 16-13-31 (c) provides that “[a]ny person who knowingly . . . has possession of a quantity of marijuana exceeding 10 pounds commits the offense of trafficking in marijuana[.]” OCGA § 16-13-30 (j) (1) states that “[i]t is unlawful for any person to . . . possess with intent to distribute marijuana.” “The presence of the marijuana . . . , coupled with the quantity of marijuana and the presence of scales used to weigh drugs, [is] sufficient evidence of possession of marijuana with an intent to distribute.” (Citation and punctuation omitted.) Midura v. State, 183 Ga. App. 523 (1) (359 SE2d 416) (1987).

The aforementioned trial evidence established that Salinas, along with his co-defendants Park and Wilson, participated in a plan for the delivery of the package of marijuana to the residence. In addition to the marijuana, the officers found and seized digital scales, a marijuana grinder, and plastic baggies. The trial evidence further reflected that Salinas gave the officers a statement admitting “that the marijuana was his.” This evidence sufficiently established that Salinas was a party to the drug offenses. See OCGA § 16-2-20 (defining when a person is a party to a crime); Park, supra, 308 Ga. App. at 654 (2). Regardless of whether he had physical possession of the marijuana, Salinas aided and abetted its actual physical possession; thus, the jury’s guilty verdict was authorized. See Park, supra, 308 Ga. App. at 654 (2).

Decided January 26, 2012.

Mark A. Begnaud, for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

Salinas contends that his admission to the officers was ambiguous since it did not specifically reference the package. The investigating officers, however, testified that Salinas’s admission, in context, pertained to the marijuana in the package since the recorded conversation between Salinas and Parks, the investigation, and the questioning centered around the package.

Salinas also argues that his trafficking conviction must be reversed since the State failed to prove that he had knowledge of the quantity of marijuana in the package. This issue has previously been decided adversely to Salinas by our precedent in Wilson, supra, 312 Ga. App. at 168 (2).

We likewise discern no merit in Salinas’s contention that the evidence was insufficient to establish the weight of the marijuana. The investigator who weighed the marijuana stated that the drug substance weighed 12.46 pounds. Salinas nevertheless argues that the investigator’s procedure of scientifically testing a sample of the substance was insufficient to establish that the entire package consisted of marijuana. Contrary to Salinas’s argument, however, “[t]his Court has previously held that the testing of representative samples is sufficient to support a conviction for trafficking in the entire amount.” (Citation and punctuation omitted.) Maldonado v. State, 284 Ga. App. 26, 32-33 (9) (643 SE2d 316) (2007). See also Smith v. State, 289 Ga. App. 236, 237-238 (656 SE2d 574) (2008). The jury was thus authorized to find Salinas guilty of the trafficking offense.

Judgment affirmed.

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

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

       Salinas further argues that the trial court erred in failing to charge the jury on the difference between scientific experts and police officers who have experience with controlled substances. Salinas’s enumerations of error, however, fail to set forth this claim of error. “It is well settled . . . that an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors.” (Citation and punctuation omitted.) Collier v. State, 303 Ga. App. 31, 33 (2), n. 10 (692 SE2d 697) (2010). See also Brown v. State, 307 Ga. App. 99, 104 (2) (c) (704 SE2d 227) (2010). We therefore decline to address Salinas’s argument. We nevertheless note that the trial court gave jury instructions explaining that the weight and credibility of the expert opinion testimony was to be determined by the jury. Salinas has not cited to any legal authority supporting his argument that an additional jury charge was required.