Smith v. State

• Decision Date: 05 October 1993
• Docket Number: No. A93A1739,A93A1739
• Citation: Smith v. State, 436 S.E.2d 562, 210 Ga.App. 451 (Ga. App. 1993)
• Parties: SMITH v. The STATE.
• Court: Georgia Court of Appeals

Page 562

436 S.E.2d 562

210 Ga.App. 451

SMITH v. The STATE.

No. A93A1739.

Court of Appeals of Georgia.

Oct. 5, 1993.

D. Todd Wooten, Athens, for appellant.

Kenneth W. Mauldin, Sol., for appellee.

BIRDSONG, Presiding Judge.

Donald L. Smith appeals his judgment of conviction and the sentence of simple possession of marijuana and driving while his license was suspended. He enumerates four errors. Held:

1. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga.App. 463(1), 393 S.E.2d 737. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

2. Appellant posed a hearsay objection to the arresting officer's testimony that: "I pulled the vehicle over that [the complainants] had instructed me was trying to run them off the road." The trial court overruled the objection, admitted the testimony, and immediately gave the jury a limiting instruction; the limiting instruction repeatedly instructed the jury that the testimony was not being admitted for the truth of the contents thereof but only to explain the officer's actions as a result of receiving such communication. Appellant took no exception to the limiting instruction, nor requested additional limiting or curative instructions be given. Further, appellant did not move for a mistrial either before or after the limiting instruction. "When an appellant could have tendered a timely motion for mistrial or requested [additional limiting or curative] instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial." Harris v. State, 202 Ga.App. 618, 620(3a), 414 S.E.2d 919; accord Kennedy v. State, 207 Ga.App. 798, 799(2b), 429 S.E.2d 167, citing Lyon v. State, 262 Ga. 247, 248(3), 416 S.E.2d 523; compare Sanford v. State, 261 Ga. 556(2c), 408 S.E.2d 110. Appellant cannot complain of the trial court's procedure in merely giving a limiting instruction when, as here, his own trial tactics procured or aided in causing such disposition. See Williams v. State, 205 Ga.App. 445, 446(2), 422 S.E.2d 309.

Additionally, assuming without deciding that this testimony was not admissible under OCGA § 24-3-2 to explain the conduct of the officer in making a traffic stop of appellant's vehicle, we find that in view of the limiting instruction given and applying the "high probability test" of Johnson v. State, 238 Ga. 59, 61, 230 S.E.2d 869, any such error was harmless. Compare Teague v. State, 252 Ga. 534, 314 S.E.2d 910 with Sanders v. State, 204 Ga.App. 545, 549(5), 419 S.E.2d 759. Appellant's first enumeration of error is without merit.

3. To qualify an expert witness, nothing more is generally required than a showing that the witness has been educated in a particular trade or profession; such special knowledge may be derived from experience as well as study. Robinson v. State, 203 Ga.App. 759, 761(5), 417 S.E.2d 404. It lies in the trial court's sound discretion to decide " ' "[w]hether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert" ' "; the exercise of this discretion will not be disturbed unless manifestly abused. McDonald v. Glynn-Brunswick Memorial Hosp., 204 Ga.App. 7, 418 S.E.2d 393; see Hall v. State, 204 Ga.App. 469, 472(3), 419 S.E.2d 503. Formal education in the particular subject is not a prerequisite for expert status. Taylor v. State, 261 Ga. 287, 290, 404 S.E.2d 255. 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. Sales v. State, 199 Ga.App. 791(1), 406 S.E.2d 131. The witness had been certified as a police officer for about two-and-one-half years; he had several police training courses, including successful completion of a forty-hour course in drug identification of which sixteen hours were devoted to teaching the students how to use the Duquenois-Levine test, the fast blue B reagent test, and the microscope test for drugs. He obtained a co-diploma for the 16-hour sub-course after having tested various marijuana samples and false samples with 100 percent accuracy. He has used those tests about 30 times; sending samples to the crime lab in 22 of those cases. In each instance, the crime lab concluded the samples were "positive." The witness previously has testified as an expert on about five prior occasions in municipal court. As there exists evidence to support the trial court's qualification of the witness as an expert in drug (marijuana) identification, we find no manifest abuse of discretion. Compare Millwood v. State, 166 Ga.App. 292, 293(3), 304 S.E.2d 103 and Cooksey v. State, 149 Ga.App. 572, 573(3), 254 S.E.2d 892. Appellant's second enumeration of error is without merit.

4. Appellant contends the trial court erred in charging actual and joint possession, as no evidence was presented that would support any such charge.

Marijuana was found in appellant's vehicle; appellant was alone in the car at the time. Appellant testified as to other persons who had access to his vehicle prior to the seizure of the vehicle. He also asserted that the jacket containing marijuana which was found on the passenger side, front seat of his car, belonged to his girl friend; there was women's...