                                THIRD DIVISION
                               ELLINGTON, P. J.,
                            BETHEL and GOBEIL, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                  September 27, 2018




In the Court of Appeals of Georgia
 A18A1132. CHRISTIAN v. THE STATE.

      BETHEL, Judge.

      Following his convictions for two counts of terroristic threats, one count of

disorderly conduct, obstruction of a law enforcement officer, possession of marijuana,

and DUI (drugs), Godfrey Andre Christian appeals from the denial of his motion for

a new trial. On appeal, Christian argues that there was insufficient evidence to sustain

his DUI (drugs) conviction, that his sentence constitutes cruel and unusual

punishment, and that the prosecution failed to prove chain of custody. However, we

find the evidence to be sufficient to sustain Christian’s DUI (drugs) conviction, that

his sentence does not “shock the conscience” so as to render it unconstitutional cruel

and unusual punishment, and that there was no reversible error with respect to his
chain of custody objection. Therefore, we affirm the trial court’s denial of Christian’s

motion for a new trial.1

      “On appeal from a criminal conviction, the evidence is viewed in the light most

favorable to the verdict, and the defendant no longer enjoys the presumption of

innocence.” State v. Robinson, 275 Ga. App. 117, 117 (619 SE2d 806) (2005)

(citation omitted). So viewed, the record shows that Christian and his girlfriend had

been renting a room in a married couple’s apartment. On October 4, 2012, the wife

came home and discovered Christian smoking marijuana outside the home despite the



      1
         Having been called to assume new duties, it appears this will be among the
last of my opinions to clutter the pages of this storied reporter. Accordingly, I beg the
indulgence of my interjecting a word of thanks to those who have made my service
on this Court rewarding, challenging, and delightful. I begin with my chambers team.
Anything approaching useful scholarly legal work you have read here after my name
is largely attributable to the efforts of Kate Celender, Jennifer McNeely, and Brad
Vaughan. Our team has been orchestrated and supported excellently by Jessica
Watkins. These people have constituted a work family that exceeded my high
expectations. Additionally, I thank the staff of the Court. Our shared state is most
fortunate to have these dedicated men and women serving us in this Court and
ensuring care and professional attention is afforded every matter that finds its way
here. Lastly, I thank my fellow Judges. It has been an honor and privilege to serve
among you, learn from you, and enjoy fellowship and friendship with you. All of
these I have mentioned embody the Georgia spirit described by our first motto, non
sibi sed aliis (not for themselves but for others). I pray my errors have been in dissent
or were reversed.


                                           2
wife having previously asked Christian to refrain from doing so. The wife notified

Christian’s girlfriend that they had thirty days to find somewhere else to live.

Christian’s girlfriend then stepped outside and notified Christian. Christian became

furious, stepped into the house, cursed at the wife, gave her the keys, and packed his

stuff to leave. After Christian and his girlfriend had left, the married couple left the

house with their children.

      While the family was out, the wife began receiving text messages from

Christian stating that he planned to return to the home and threatening “war” if his

rent money was not returned. The couple returned home and met Christian outside.

As Christian emerged from his vehicle outside the home, he threatened to stab the

husband and began moving toward him. However, the husband displayed a firearm,

stopping Christian’s approach. Christian then said that when the husband was at

work, Christian and some friends would return to the home, rape the wife, murder the

children, and shoot up the house. The wife called police as Christian left the home.

      Christian returned to the home a second time, parked behind the home, and

smoked marijuana. Christian then pulled his vehicle around to the front of the home

and asked the husband, who was outside, to fight. The husband declined, and

Christian again drove away from the home. After police arrived and began talking to

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the couple, Christian returned to the home a third time. Police asked Christian to stop

and talk, but Christian continued driving. Several police cars attempted to pull

Christian over and after several failed attempts, finally succeeded.

      Upon Christian’s arrest, police noticed a strong odor of marijuana coming from

the car and Christian’s glazed and dilated eyes. Police also discovered marijuana in

the vehicle. Police obtained a search warrant for Christian’s blood, which tested

positive for marijuana. A jury ultimately convicted Christian of two counts of

terroristic threats, disorderly conduct, obstruction of a law enforcement officer, and

DUI (drugs). Christian filed a motion for a new trial, which was denied following a

hearing, and this appeal followed.

      1. Christian argues the evidence was insufficient to support his conviction for

DUI (drugs)2 because the State did not offer any evidence that the testing was done

in compliance with the provisions of OCGA § 40-6-392.

      In an appeal challenging the sufficiency of the evidence, “it is the function of

this court to examine the evidence in the light most favorable to the verdict and to

determine whether any rational trier of fact could have found the appellant guilty


      2
        Christian does not challenge the sufficiency of the evidence on his other
convictions.

                                          4
beyond a reasonable doubt.” Booker v. State, 257 Ga. 37, 38 (1) (354 SE2d 425)

(1987) (citation omitted). “As long as there is some competent evidence, even though

contradicted, to support each necessary element of the state’s case, this Court will

uphold the jury’s verdict.” Lucas v. State, 295 Ga. App. 831, 832 (1) (673 SE2d 309)

(2009) (footnote omitted).

      Christian was convicted of DUI (drugs) under OCGA § 40-6-391 (a) (2).

OCGA § 40-6-391 (a) (2) provides as follows: “A person shall not drive or be in

actual physical control of any moving vehicle while: . . . [u]nder the influence of any

drug to the extent that it is less safe for the person to drive.” At trial, the evidence

showed that Christian tested positive for marijuana shortly after he was forcibly

removed from his vehicle, which smelled strongly of marijuana, and was observed

with glazed and dilated eyes. Christian’s girlfriend, who was also in the vehicle at the

time of his arrest, informed officers that Christian had smoked five “blunts” that day.

Finally, the evidence showed that Christian led police on a low-speed chase through

the apartment complex, culminating in him being forcibly removed from the vehicle

and tased before his arrest. This evidence was sufficient to authorize a rational trier

of fact to find that Christian was impaired due to the marijuana in his system such that



                                           5
he was less safe to drive. See Rivera v. State, 309 Ga. App. 544, 545 (1) (710 SE2d

694) (2011); Sistrunk v. State, 287 Ga. App. 39, 39-40 (651 SE2d 350) (2007).

      In light of this evidence in the record, it was not necessary for the State to

demonstrate compliance with the requirements of OCGA § 40-6-392 in order to

sustain the conviction for DUI less safe under OCGA § 40-6-391 (a) (2). This

enumeration is without merit.

      2. Christian next argues that his sentence for terroristic threats constitutes cruel

and unusual punishment in violation of the United States and Georgia Constitutions

because the statute, OCGA § 16-11-37 (a), was later changed to make violation a

misdemeanor. We do not find that his sentence constitutes cruel and unusual

punishment.

      Both the Georgia and the federal constitutions categorically prohibit
      inflicting cruel and unusual punishments. A punishment is cruel and
      unusual if it (1) makes no measurable contribution to accepted goals of
      punishment and hence is nothing more than the purposeless and needless
      imposition of pain and suffering; or (2) is grossly out of proportion to
      the severity of the crime. Whether a punishment is cruel and unusual is
      not a static concept, but instead changes in recognition of evolving
      standards of decency that mark the progress of a maturing society.
      Legislative enactments constitute the clearest and most objective
      evidence of how contemporary society views a particular punishment.

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      As a result, the issue of punishment is generally one for the legislative
      branch, and legislative discretion is deferred to unless the sentence
      imposed shocks the conscience.


Johnson v. State, 276 Ga. 57, 62 (5) (573 SE2d 362) (2002) (citation and punctuation

omitted).

      In 2016, the General Assembly revised OCGA § 16-11-37 to provide for

misdemeanor punishment of terroristic threats except under certain circumstances,

including where the threat “suggested the death of the threatened individual.” Ga. L.

2016, p. 812, § 2. These changes went into effect May 3, 2016. See id. Prior to the

revision, and at the time Christian committed and was tried on the offenses, the

relevant portion of the statute allowed for “imprisonment for not less than one nor

more than five years[.]” See prior OCGA § 16-11-37 (c) (effective July 1, 2012 to

June 30, 2015). Christian received a sentence of 5 years on each of the two counts,

to be served consecutively. Christian was thus given a sentence within the limits

provided by law. See OCGA § 17-10-1 (a) (1) (A) (authorizing a trial court to

sentence a defendant to any amount of time within the limits provided by law). See

also Holsey v. State, 316 Ga. App. 801, 805-806 (3) (729 SE2d 465) (2012)

(recognizing the judge’s discretion to impose consecutive sentences). Further, even


                                         7
under the amended statute, Christian’s threats would have fallen within the same

sentencing range because Christian threatened to stab the husband, gang-rape the

wife, and shoot up the couple’s house. See OCGA 16-11-37 (d) (1) (providing that

“if the threat suggested the death of the threatened individual, the person convicted

shall be guilty of a felony and shall be punished by . . . imprisonment for not less than

one nor more than five years”). Thus, while society’s standards as expressed in our

code may have theoretically “evolved” to view other terroristic threats less severely

in terms of punishment (as arguably evidenced by the provision of misdemeanor

offenses), the General Assembly has not elected to reduce the punishment for threats

suggesting death.

       Here, we cannot say that the five year sentence imposed for each threat

suggesting the death of the husband and wife “shocks the conscience” so as to render

the sentence unconstitutional. See, e.g., Holsey, 316 Ga. App. at 805 (3) (five year

concurrent sentence for terroristic threat not cruel and unusual). This enumeration

therefore fails.

       3. Finally, Christian argues that the State failed to prove chain of custody with

respect to his blood sample (which showed that Christian had consumed marijuana)



                                           8
because there was no testimony regarding how the sample was placed into the

lockbox and transported to the crime lab. There is no reversible error.

      During the trial, Christian failed to object to testimony of the forensic

toxicologist who testified regarding the blood test. In his amended motion for a new

trial, Christian asserted for the first time the State’s alleged failure to present chain

of custody evidence regarding his blood sample. Under our previous Evidence Code,

this matter would have been waived for appellate review. See Glover v. State, 230 Ga.

App. 795, 797 (1) (498 SE2d 300) (1998). However, the new Evidence Code allows

this Court to review rulings admitting or excluding evidence for plain error. See

OCGA § 24-1-103 (d); Gates v. State, 298 Ga. 324, 328 (3) (781 SE2d 772) (2016).

Accordingly, we review this claim for plain error.

      In determining whether plain error exists, we consider the following four-

prongs:

      First, there must be an error or defect — some sort of deviation from a
      legal rule — that has not been intentionally relinquished or abandoned,
      i.e., affirmatively waived by the appellant. Second, the legal error must
      be clear and obvious, rather than subject to reasonable dispute. Third,
      the error must have affected the appellant’s substantial rights, which in
      the ordinary case means he must demonstrate that it affected the
      outcome of the trial court proceedings. Fourth and finally, if the above

                                           9
      three prongs are satisfied, the appellate court has the discretion to
      remedy the error — discretion which ought to be exercised only if the
      error seriously affects the fairness, integrity or public reputation of
      judicial proceedings. Reversal is authorized only if all four prongs are
      satisfied — a difficult standard indeed.


Carter v. State, 302 Ga. 200, 206 (3) (805 SE2d 839) (2017) (cleaned up).

      Even if we were to presume that Christian satisfied the first and second prongs

of the above test, there is no plain error here because he has failed to meet his burden

under the third prong. That is, Christian has failed to demonstrate that the alleged

“error” in admitting the blood sample affected the outcome of the trial. Here, there

was testimonial evidence from two other witnesses that Christian had smoked

marijuana shortly before driving. Further, police noticed a strong odor of marijuana

coming from Christian’s car, in addition to his glazed and dilated eyes. Finally, police

also discovered marijuana in Christian’s vehicle. Thus, the evidence regarding the

blood sample was cumulative, “and its admission did not in reasonable probability

affect the outcome of the trial.” Lafavor v. State, 334 Ga. App. 125, 128 (2) (778

SE2d 377) (2015) (footnote omitted).

      Judgment affirmed. Ellington, P. J., and Gobeil, J., concur.




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