                                FIFTH DIVISION
                               MCFADDEN, P. J.,
                            BRANCH and BETHEL, 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


                                                                      June 23, 2017




In the Court of Appeals of Georgia
 A17A0634. DANLEY v. THE STATE.

      BRANCH, Judge.

      On appeal from his conviction for driving under the influence (DUI) and with

a suspended license, Leonard Danley, Jr., argues that the evidence was insufficient

and that the trial court erred in some evidentiary rulings and in requiring him to admit

the elements of DUI in order to receive a charge on justification. Danley also argues

that trial counsel was ineffective. We find no error and affirm.

      “On appeal from a criminal conviction, we view the evidence in the light most

favorable to the verdict, with the defendant no longer enjoying a presumption of

innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation

omitted). We neither weigh the evidence nor judge the credibility of witnesses, but

determine only 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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)

(99 SCt 2781, 61 LE2d 560) (1979) (citation and emphasis omitted).

      So viewed, the record shows that on the early morning of February 8, 2014,

Danley had been taking shots of whiskey with a couple at their home when he walked

up behind the woman and put his hands underneath her shirt, moving them from her

back toward her breasts. The victim immediately demanded that Danley leave the

house; when he failed to do so, the victim’s husband physically removed him. As the

husband forced Danley toward Danley’s car, the victim intervened. Danley then

swung at the husband but missed, and the punch landed on the victim’s face. When

the victim told Danley that she was going to call the police, Danley struck her in the

face a second time, got in his car, and drove away.

      Acting on two 911 calls from the victim’s husband, who died before trial, a

captain with the Douglas County Sheriff’s Office observed a white Nissan Cube

driving away from the location of the fight. The officer initiated a traffic stop,

identified Danley as the driver, and observed that Danley appeared to be intoxicated.

Less than one minute later, a deputy arrived to conduct a DUI investigation. The

deputy noted that Danley smelled of alcohol and had slurred speech and bloodshot,

                                          2
watery eyes. Danley admitted to having consumed alcohol a hour earlier. With

Danley’s consent, the deputy performed horizontal gaze-nystagmus (HGN) and walk-

and-turn tests. Danley exhibited all six clues on the HGN test, could not keep his

balance during the walk-and-turn, and repeatedly put his hands in his pockets despite

the deputy’s instructions not to do so. An Alcosensor breath test was also positive.

      The deputy placed Danley under arrest for DUI, read him the implied consent

warning, and asked for permission to test Danley’s blood, which Danley refused. The

deputy ran Danley’s information and found that his driver’s license was suspended

as a result of a prior DUI conviction. The deputy then obtained and executed a search

warrant as to Danley’s blood, which showed a blood-alcohol concentration of 0.253,

or more than three times the legal limit.1

      Danley was charged with sexual battery, battery, DUI per se and less-safe, and

driving with a suspended license. The sexual battery charge was later dropped. At

trial, Danley stipulated in writing that his license had been suspended in August 2012

and not reinstated before the incidents at issue; this stipulation was read to the jury.

      1
        See OCGA § 40-6-391 (a) (“A person shall not drive or be in actual physical
control of any moving vehicle while: . . . (5) [t]he person’s alcohol concentration is
0.08 grams or more at any time within three hours after such driving or being in
actual physical control from alcohol consumed before such driving or being in actual
physical control ended.”).

                                             3
The State presented evidence including Danley’s prior DUI conviction arising from

events occurring on December 31, 2011, at which time Danley showed all six clues

as to an HGN test, blew a positive alcosensor result, and refused a blood test.

      After the State rested its case, Danley sought to introduce the deceased

husband’s two 911 calls as well as a return call from the sheriff’s department in which

police, who were pursuing Danley, asked the husband about the direction in which

Danley was driving away from the scene. After the State argued that the call from the

sheriff’s department to the husband took place after any emergency had come to an

end, the trial court excluded this call as testimonial evidence and inadmissible

hearsay. Danley then moved for a directed verdict on grounds including that the

evidence was insufficient as to the battery charge and that the captain lacked probable

cause to stop Danley. After explaining that Danley had waived any issue as to

probable cause by failing to file a motion to suppress before trial, the trial court

denied the motion for directed verdict.

      A jury acquitted Danley of the battery charge, but found him guilty of both

counts of DUI and driving with a suspended license. The trial court merged the two




                                          4
DUI counts and sentenced Danley to 12 months with 150 days to serve. This appeal

followed.2

      1. Our review of the record, including the evidence outlined above, shows that

the evidence was sufficient to sustain Danley’s conviction for DUI and driving with

a suspended license.3 See OCGA §§ 40-6-391 (a) (1), (5) (defining less-safe and per-

se DUI), 40-5-121 (defining offense of driving while license suspended or revoked);

Jackson, supra; Daniel v. State, 298 Ga. App. 245, 246 (1) (679 SE2d 811) (2009)

(evidence including defendant’s blood-alcohol level of 0.235 shortly after an accident

was sufficient to sustain less-safe and per-se DUI convictions).

      2. Danley argues that the trial court erred when it denied his motion for a

directed verdict because officers did not have probable cause to stop or arrest him. As

the trial court explained, however, Danley failed to move to suppress any evidence

before trial, with the result that he waived any constitutional challenge to the



      2
       The State has moved to dismiss the appeal on grounds including that Danley’s
brief was filed two days after the deadline for doing so, which had already been
extended 29 days at Danley’s request. See Court of Appeals Rule 23 (a). The motion
to dismiss is denied.
      3
        Danley’s contention that the trial court should have granted a directed verdict
as to the battery charge is mooted by the jury’s acquittal of him on that charge.
Reagan v. State, 281 Ga. App. 708, 709-710 (1) (637 SE2d 113) (2006).

                                          5
admissibility of that evidence. Harkleroad v. State, 317 Ga. App. 509, 512 (1) (b), n.

9 (732 SE2d 278) (2012); see also Hatcher v. State, 224 Ga. App. 747, 748-749 (1)

(482 SE2d 443) (1997) (“[f]ailing to file a timely motion to suppress amounts to a

waiver of even constitutional challenges”) (citation omitted). Further, the officers had

authority to stop Danley’s car on the basis of the husband’s call and to arrest him for

DUI when he exhibited evidence of impairment, including smelling of alcohol,

showing six of six HGN clues, and blowing a positive breath test. See Jaffray v. State,

306 Ga. App. 469, 473-474 (3) (702 SE2d 742) (2010).

      3. Danley argues that the trial court erred when it excluded the call from the

sheriff’s department to the victim’s husband from evidence as hearsay. We disagree.

      (a) Although Danley’s trial took place in March 2016, Danley cites a single

statute from the former Evidence Code, former OCGA § 24-2-4,2 in support of his


      2
        Former OCGA § 24-2-4 provided that “[w]here either party introduces part
of a document or record, the opposite party may read so much of the balance as is
relevant.” Although this former statute was not replaced by a specific provision in the
new Evidence Code, the so-called “rule of completeness” codified at OCGA § 24-8-
822 (formerly OCGA § 24-3-38) provides that “[w]hen an admission is given in
evidence by one party, it shall be the right of the other party to have the whole
admission and all the conversation connected therewith admitted into evidence.” See
also OCGA § 24-1-106 (“When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the introduction at that time of
any other part or any other writing or recorded statement which, in fairness, should
be considered contemporaneously with the writing or recorded statement.”);
Westbrook v. State, 291 Ga. 60, 62 (727 SE2d 473) (2012); Morales v. State, 337 Ga.
App. 614, 619 (3) (a) (788 SE2d 535) (2016).

                                           6
argument that it was “unfair” to exclude the third call. As a preliminary matter, we

note that a citation to a statute which was not in effect at the time of the March 2016

trial at issue does not amount to effective legal argument. See Davis v. State, 299 Ga.

180, 192 (3) (787 SE2d 221) (2016) (“Georgia lawyers do this Court no favors – and

risk obtaining reversible evidence rulings from trial courts – when they fail to

recognize that we are all living in a new evidence world and are required to analyze

and apply the new law.”).

      Danley does not argue that the admission of the sheriff’s return call was

necessary to correct any “misleading” impression created by the admission of the first

two calls. See United States v. Self, 414 Fed. Appx. 611, 615 (5th Cir. 2011) (when

defendant had not explained how portions of recorded conversations were

“misleading and prejudicial,” he had “failed to show that the district court abused its

discretion” in admitting those portions). Further, each call was separate, such that

Danley’s invocation of the rule of completeness fails. See United States v. Stevens,

778 FSupp2d 683, 708-709 (W.D. La. 2011) (separate statements made by different

defendants were not admissible under the rule of completeness absent a showing of

relevance). Under the new Evidence Code, moreover, it remains for the trial court to

determine whether evidence is relevant, and we review such decisions only for an

                                          7
abuse of discretion, as where “the trial court significantly misapplies the law.” Oliver

v. State, 329 Ga. App. 377, 379 (765 SE2d 606) (2014) (footnote omitted). In this

case, the trial court correctly applied the law.

      (b) The husband’s death before trial raises the Confrontation Clause concerns

argued below as to both the husband’s calls to 911 and the return call back from

police.

      In Crawford v. Washington, 541 U. S. 36, 53-54 (124 SCt 1354, 158
      LE2d 177) (2004), the United States Supreme Court held that the
      Confrontation Clause of the Sixth Amendment bars “admission of
      testimonial statements of a witness who did not appear at trial unless he
      was unavailable to testify, and the defendant had had a prior opportunity
      for cross-examination.” Because only testimonial statements “cause the
      declarant to be a ‘witness’ within the meaning of the Confrontation
      Clause, it is the testimonial character of the statement that separates it
      from other hearsay that, while subject to traditional limitations upon
      hearsay evidence, is not subject to the Confrontation Clause.”


Thomas v. State, 284 Ga. 540, 542 (2) (668 SE2d 711) (2008), quoting Davis v.

Washington, 547 U. S. 813, 821 (II) (B) (126 SCt 2266, 165 LE2d 224) (2006).

Specifically, “911 calls, or portions of 911 calls, can fall under the category of

‘testimonial statements,’ depending on a determination as to the primary purpose for

the call.” State v. Gunn, 333 Ga. App. 893, 894 (777 SE2d 722) (2015) (footnote

                                           8
omitted). Whether the “primary purpose” of a communication between police and a

victim is part of an “ongoing emergency” is a “matter[ ] of objective fact” for a trial

court to resolve. Michigan v. Bryant, 562 U. S. 344, 360 (III) (A) (131 SCt 1143, 179

LE2d 93) (2011); see also Gunn, 333 Ga. App. at 895 (“whether an emergency exists

and remains ongoing is a highly context-dependent inquiry”) (punctuation, footnote

and emphasis omitted).

      The trial court admitted the husband’s first two 911 calls on the ground that

they were made during the ongoing emergency created by Danley’s attack on the

victim and were thus non-testimonial and admissible, and Danley does not challenge

this decision on appeal. Although Danley sought the admission of the sheriff’s return

call because the husband stated in it that Danley had punched the victim

unintentionally, the court excluded this call on the ground that by the time that call

was placed, Danley had left the property and the emergency had ended. Accordingly,

the conversation was testimonial and, as the husband was deceased at the time of trial

and unavailable to testify, inadmissible hearsay.

      Here, the record supports both the trial court’s factual determination that by the

time the third call was placed by the sheriff’s department to the victim’s husband, any

“ongoing emergency” posed by Danley to the victims was over and its legal

                                          9
conclusion that, in light of the husband’s death, the call was hearsay and its admission

would have been erroneous. See Cuyuch v. State, 284 Ga. 290, 295 (3) (667 SE2d 85)

(2008) (reversing an affirmance of defendant’s conviction for aggravated battery

when the jury considered testimonial and inadmissible hearsay statements as to the

circumstances of the crime). Further, Danley was acquitted on the battery charge such

that any possible error in excluding the third call was harmless. See Cook v. State,

256 Ga. 808, 812 (2) (353 SE2d 333) (1987) (erroneous refusal to admit evidence

showing a defendant’s lack of an extravagant lifestyle was harmless when defendant

was acquitted on theft-by-taking charges). For all these reasons, we cannot find an

abuse of discretion in the trial court’s exclusion of the sheriff’s return call as

inadmissible testimonial and hearsay evidence.

      4. Danley also argues that the trial court erred when it admitted his December

2011 DUI conviction into evidence. We disagree.

      Before trial, the State filed notice of its intent to introduce evidence of Danley’s

DUI conviction arising from events occurring on December 31, 2011. At a pretrial

hearing, the State proffered an officer’s testimony that Danley was pulled over in

2011 pursuant to a BOLO, smelled of alcohol, had bloodshot, watery eyes and slurred

speech, admitted to drinking, and blew a positive alcosensor result. After being

                                           10
placed under arrest for DUI, Danley refused a state-administered blood test. The State

offered this officer’s testimony about the 2011 incident for purposes including a

showing that Danley knew that drinking impaired his driving. The State also offered

a certified copy of the conviction arising from these events.

      OCGA § 24-4-417 (a) provides in relevant part that

      evidence of the commission of another [DUI] violation . . . on a different
      occasion by the same accused shall be admissible when: (1) The accused
      refused in the current case to take the state administered test required by
      Code Section 40-5-55 and such evidence is relevant to prove
      knowledge, plan, or absence of mistake or accident; . . .


(Emphasis supplied.) As the Supreme Court of Georgia has held, evidence that a DUI

defendant previously refused a state-administered blood test “‘shall be admissible’”

to permit the trier of fact to infer that “a prohibited intoxicant was present to some

degree” and that the defendant “knew that the test results likely would tend to show

that he was, in fact, under the influence of a prohibited substance.” State v. Frost, 297

Ga. 296, 305 (773 SE2d 700) (2015), quoting OCGA § 24-4-417 (a) (1) (emphasis

supplied).

      Here, the trial court specifically found that the State offered evidence

concerning the December 2011 DUI for the valid purpose of proving Danley’s

                                           11
knowledge and intent, and that the probative value of the 2011 DUI was “not

substantially outweighed by the danger of unfair prejudice or the confusion of issues

or misleading the jury.”3 The trial court also found that State had proffered sufficient

evidence, in the form of both the officer’s testimony and the certified conviction, that

Danley in fact committed the prior act. There was no abuse of discretion in these

findings. Frost, 297 Ga. at 305-306 (no abuse of discretion in trial court’s finding that

evidence of two prior DUIs was “‘relevant to prove knowledge’” and was thus

admissible under Rule 417 (a) (1), and quoting that Rule); see also State v. Jones, 297

Ga. 156, 160-164 (2), (3) (773 SE2d 170) (2015) (remanding to the Court of Appeals

for consideration of whether trial court’s admission of defendant’s prior DUI

conviction, which was relevant to prove his intent to drive while intoxicated and his

knowledge of the consequences of doing so, was an abuse of discretion under Rules

403 and 404 (b)).




      3
        See OCGA § 24-4-403 (“Relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.”).

                                           12
      5. Danley also argues that the trial court erred in forcing him to “admit guilt”

to the less-safe DUI charge before granting his request for a charge on justification.

We disagree.

      “The defense of justification is an affirmative defense, meaning that the

defendant admits the act but seeks to justify, excuse, or mitigate it,” and “[t]he

defendant must admit the crime before he can raise the defense.” London v. State, 289

Ga. App. 17, 19 (1) (656 SE2d 180) (2007) (footnote omitted).

      Danley requested a jury charge on the affirmative defense of justification by

“duress or necessity” on the ground that the wife and husband had “kept bringing him

drink after drink.” Consistent with the above-quoted law, the trial court held that

Danley would have to admit to the elements of less-safe DUI in order to receive a

charge on justification. Danley agreed, retook the stand, and admitted to the elements

of less-safe DUI. The trial court then charged the jury on the affirmative defense of




                                         13
justification by reason of coercion,4 and Danley made no objection to this or any other

portion of the charge.

      Danley has never asserted that the charge on justification was not adjusted to

the evidence. Further, the trial court’s accurate statement of the law did not “force”

Danley to admit to the elements of DUI; rather, Danley made an informed and

strategic choice to do so as the only means of placing his justification defense before

the jury. For these reasons, Danley’s assertion lacks merit.

      6. Although Danley asserts that his trial counsel was ineffective, the record

shows that trial counsel never filed a motion for new trial and that he continues to

represent Danley on this appeal.5




      4
          See, e.g., Council of Superior Court Judges, Suggested Pattern Jury
Instructions, Vol. II (Criminal), § 3.01.10 (“The fact that a person’s conduct is
justified is a defense to prosecution for any crime based on that conduct[, and] can be
claimed (a) when the person’s conduct is justified under OCGA §[ ] 16-3-26”
[defining coercion for purposes of a defense as “such coercion that the person
reasonably believes that performing the act is the only way to prevent his imminent
death or great bodily injury”]).
      5
        In fact, Danley’s father served as his trial counsel and is serving as his
appellate counsel.

                                          14
      It is highly unusual, if not unprecedented, for trial counsel to fail to file any

motion for new trial, to remain as appellate counsel, and to attempt to raise his own

ineffectiveness at trial for the first time on appeal. Nonetheless,

      [u]nder well established Georgia law, appellant was required to raise any
      issue of ineffective assistance of trial counsel at the earliest practicable
      moment to avoid it being deemed waived. . . . By “earliest practicable
      moment,” we mean that the ineffectiveness claim must “be raised before
      appeal if the opportunity to do so is available.” (Emphasis in original.)
      Glover v. State, 266 Ga. 183, 184 (465 SE2d 659) (1996).


Garland v. State, 283 Ga. 201, 202 (657 SE2d 842) (2008) (citations and punctuation

omitted; emphasis in original). Even assuming that this appeal was the earliest

opportunity at which trial counsel realized and raised his own ineffectiveness, this

appeal is not a practicable forum for the consideration of that claim, for two reasons:

because the trial court was never given an opportunity to make any factual finding on

the question of ineffectiveness, and because an “appellant’s trial counsel [can]not

reasonably be expected to assert or argue his own ineffectiveness on appeal. White

v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991).” Id. at 203.

      An appellant’s “failure to raise the issue at all in the trial court results in no

appellate consideration of the claim of ineffectiveness[.]” Wilson v. State, 277 Ga.


                                          15
195, 198 (2) (586 SE2d 669) (2003) (citation omitted). Further, Danley “does not

argue or point to any facts in the record that indicate either cause for appellate

counsel’s failure to raise the claim or any prejudice arising therefrom.” White v.

Kelso, 261 Ga. at 33. This record, including Danley’s blood test result, his stipulation

as to driving without a license, and his acquittal on the battery charge, makes it

impossible for him to show that he was prejudiced by any alleged ineffectiveness. Id.

The issue must therefore await habeas proceedings, which are “the exclusive

post-appeal procedure available to a criminal defendant who asserts the denial of a

constitutional right.” Mallon v. State, 266 Ga. App. 394, 398 (4) (597 SE2d 497)

(2004) (citation omitted).

      Judgment affirmed. McFadden, P. J., and Bethel, J., concur.




                                          16
