                               SECOND DIVISION
                                ANDREWS, P. J.,
                             MCFADDEN and RAY, 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/


                                                                      March 2, 2015




In the Court of Appeals of Georgia
 A14A1806. NGUYEN v. THE STATE.

      RAY, Judge.

      After a trial in which he represented himself pro se, Trung Nguyen was

convicted of one count of driving under the influence (less safe) (OCGA § 40-6-391

(a) (1)). Nguyen appeals from his conviction, arguing that the trial court erred in

admitting a similar transaction into evidence and that the State erred in discussing

such evidence during its opening statement. Nguyen also argues that the trial court

erred in ruling that he knowingly and intelligently waived his right to counsel. For the

following reasons, we 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. 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, a rational trier
      of fact could have found the essential elements of the crime beyond a
      reasonable doubt.


(Citations and punctuation omitted.) Owens v. State, 326 Ga. App. 692, 692 (757

SE2d 288) (2014).

      The evidence at trial showed that Officer Matt Reeves of the Flowery Branch

Police Department initiated a traffic stop on Nguyen’s vehicle after noticing he was

exhibiting a “pattern of erratic and less-safe driving” that included weaving in and out

of his lane, accelerating and decelerating his speed, and failing to use his brake lights.

As the officer approached the vehicle, he smelled an odor of alcohol emanating from

the vehicle’s open window and noticed that Nguyen’s eyes had a glazed, watery, and

bloodshot appearance. Nguyen told the officer that he had been drinking beer that

evening. The officer then gave Nguyen field sobriety tests, and from the tests’ results,

the officer concluded that Nguyen was “impaired. He shouldn’t have been on the

road. He was too drunk to have been on the road.” The officer also testified that he

overheard Nguyen state, in a phone call to his wife, that “I don’t know how I got so

drunk, but I’m under arrest for DUI.” A blood test taken approximately an hour and

a half after the initial traffic stop revealed a blood alcohol level of 0.078. The State


                                            2
provided expert testimony that Nguyen’s blood alcohol content at the time of the stop

was likely between 0.088 and 0.103.

      1. Nguyen asserts that the trial court erred in failing to adequately ascertain that

the waiver of his right to counsel was knowing and voluntary.

We disagree.

      As an accused in a prosecution that could end up in imprisonment, Nguyen had

a constitutional right to counsel. The determination of whether an accused has

intelligently waived this constitutional right depends upon the particular facts and

circumstances of each case. Dellinger v. State, 269 Ga. App. 878, 878 (2) (a) (605

SE2d 632) (2004). Although an accused may waive this right, the waiver is only valid

if it is made with an understanding of

      (1) the nature of the charges, (2) any statutory lesser included offenses,
      (3) the range of allowable punishments for the charges, (4) possible
      defenses to the charges, (5) circumstances in mitigation thereof, and (6)
      all other facts essential to a broad understanding of the matter.


(Footnote omitted.) Middleton v. State, 254 Ga. App. 648, 648 (1) (563 SE2d 543)

(2002). Nevertheless, “it is not incumbent upon the trial court to make each of these

inquiries.” (Citation, punctuation and footnote omitted.) Bush v. State, 268 Ga. App.

200, 202 (2) (601 SE2d 511) (2004). See Hightower v. State, 252 Ga. App. 811, 811

                                           3
(557 SE2d 434) (2001), (“[c]ontrary to the implication in some appellate decisions,

the warnings required to meet constitutional muster need not take any rigid form, and

specific questions need not be asked on the record”). Rather, the record need only

reflect “that the defendant was made aware of the dangers of self-representation and

nevertheless made a knowing and intelligent waiver.” (Citation and punctuation

omitted.) Cook v. State, 297 Ga. App. 701, 702 (678 SE2d 160) (2009). The

determination of “whether a defendant has been sufficiently warned about the dangers

of self-representation will turn on the peculiar facts and circumstances of each case.”

Simpson v. State, 238 Ga. App. 109, 112 (1) (517 SE2d 830) (1999) (finding that

where, inter alia, trial court told him it would be “extraordinarily unwise” to represent

himself and appointed counsel had an “ongoing dialogue” with appointed counsel

about the dangers of such, defendant knowingly and intelligently waived his right to

counsel despite fact that the trial court did not make certain specific inquiries).

      In the present case, Nguyen appeared pro se when the case was called to trial,

and he stated that he did so because he was not eligible for court-appointed counsel

and decided to represent himself at trial. The trial court indicated to Nguyen that it

would “go over a few things with you” prior to trial. The trial court asked Nguyen if

he was under the influence of any alcohol or drug, or whether he was suffering from

                                           4
any mental or physical disabilities. Nguyen responded negatively. The trial court then

informed Nguyen of the nature of the charges against him and the maximum penalty

that could be imposed for each charge. When asked if he understood, Nguyen

responded affirmatively. The trial court then went over the dangers of proceeding to

trial without the assistance of counsel, including the fact that a lawyer could possibly

aid in the discovery or presentation of defenses to the charges, discover weaknesses

in the case or offer beneficial advice. The trial court further advised Nguyen of his

right to remain silent, right not to testify or offer any evidence, and that it is the

State’s burden of proof and not for him to disprove. The trial court also advised

Nguyen that he was bound by the rules of trial procedure. Nguyen responded that he

understood these terms and that he still wished to proceed pro se. Nguyen also signed

a pre-trial waiver form. The form stated that he had been advised of the nature of the

charges against him, had been advised of the maximum sentence allowed on each

charge and of the dangers of proceeding to trial without the assistance of counsel,

namely, that he would be bound by the rules of trial procedure despite not having

been trained as a lawyer, and that a lawyer would be able to assist him by discovering

and raising defenses to the charges or discover weaknesses in the State’s case.



                                           5
      Nguyen contends that the trial court erred by failing to discuss potential

defenses, the possibility of lesser-included offenses, mitigating circumstances or the

range of allowable punishments with him. By failing to mention these issues, Nguyen

argues, the trial court failed to properly ascertain that he knowingly and voluntarily

waived his right to counsel. “This argument ignores the repeated emphasis that ‘no

magic language must be used by the trial judge in making the defendant aware of his

right to counsel and of the dangers of proceeding without counsel.” (Citation and

punctuation omitted.) Bush, supra at 204. (waiver of counsel was knowingly and

voluntarily made despite trial court’s failure to inform defendant of lesser-included

offenses and the need to preserve issues for appeal). As stated earlier, the trial court

does not have to ask any particular questions, but rather the record need only to

reflect that, “aware of the dangers of self-representation, the accused nevertheless

made a knowing and intelligent waiver.” (Citation omitted.) Bush, supra.

      2. Prior to trial, the State moved to admit evidence that Nguyen was convicted

of DUI per se in 2003 as a similar transaction tending to prove Nguyen’s “knowledge,

intent, [and] absence of mistake.” The State introduced evidence that Nguyen’s

vehicle was pulled over for failing to maintain his lane and fluctuating his rate of

speed in 2003. After roadside sobriety tests indicated that he was intoxicated, Nguyen

                                           6
was arrested, and subsequent blood tests indicated that he had a blood alcohol content

of .093. Nguyen did not object to the admission of this evidence either before or

during trial.

       Nguyen cites to this Court’s recent decision in Jones v. State, 326 Ga. App.

658 (757 SE2d 261) (2014) for the proposition that the trial court committed plain

error in admitting his 2003 DUI conviction as similar transaction evidence in

violation of O.C.G.A § 24-4-404 because the prior conviction evidence was neither

relevant to nor probative of any issue at trial aside from his character.

       This Court in Jones held, in a case of first impression, that under OCGA § 24-

4-404 (b) of Georgia’s new Evidence Code1 that evidence of a prior DUI conviction

is not admissible for the purposes of showing intent and knowledge of the accused

in a DUI trial.2 Without deciding whether the holding in Jones would apply in the

       1
           OCGA § 24-4-404 (b) provides:

       [e]vidence of other crimes, wrongs, or acts shall not be admissible to
       prove the character of a person in order to show action in conformity
       therewith. It may, however, be admissible for other purposes, including,
       but not limited to, proof of motive, intent, preparation, plan, knowledge,
       identity, or absence of mistake or accident.
       2
       We note that this holding in Jones is currently on appeal before the Supreme
Court of Georgia, Case No. S14G1061.

                                           7
present case, we note that the trial court did not commit plain error3 by failing to

exclude the 2003 similar transaction evidence. Jones was decided on March 28, 2014,

more than two months after the trial in this case.

       Our Supreme Court has adopted the following standard regarding a plain error

analysis:

      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 or 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
      three prongs are satisfied, the appellate court has the discretion to
      remedy the error - discretion which ought to be exercised only if the



      3
         “Georgia has long followed the contemporaneous objection rule, which
provides that counsel [or a pro se defendant] must make a proper objection on the
record at the earliest possible time to preserve for review the point of error.” (Citation
and punctuation omitted.) Fraser v. State, 329 Ga. App. 1, 1 (763 SE2d 359) (2014).
However, because this trial occurred after January 1, 2013, we may review the
admission of the improper similar transaction evidence for plain error. See Rembert
v. State, 324 Ga. App. 146, 152 (2), n. 8 (749 SE2d 744) (2013) (“Georgia’s new
Evidence Code, which applies to cases tried after January 1, 2013, allows a court to
consider ‘plain errors affecting substantial rights although such errors were not
brought to the attention of the court.’ OCGA § 24-1-103 (d).”).


                                            8
       error seriously affects the fairness, integrity or public reputation of
       judicial proceedings.


(Citation and punctuation omitted; emphasis supplied.) State v. Kelly, 290 Ga. 29, 33

(2) (a) (718 SE2d 232) (2011). See also Puckett v. U. S., 556 U. S. 129, 135 (II) (129

S.Ct. 1423, 173 LE2d 266 ) (2009). Although Nguyen may have been entitled to a

ruling that the 2003 similar transaction evidence be excluded had he made the

appropriate motion,4 we cannot say that the trial court committed plain error by

admitting the 2003 similar evidence. Such error, if any, would not have met the

second prong of the plain error analysis – that the “legal error be clear and obvious.”

This is so because the relevant issue was not decided by this Court until two months

after the trial in the present case.

       3. Finally, without citing to any relevant case law, Nguyen contends that the

State committed error by referencing the 2003 similar transaction evidence in her

opening statement. Nguyen failed to object to this reference at trial. Even if he had

properly preserved his objection for appellate review, he has not provided any

authority for his contention that a prosecutor may not refer in opening statement to

similar transaction evidence which has already been ruled admissible. A prosecuting

       4
           This assumes that the holding in Jones is upheld by our Supreme Court.

                                           9
attorney in an opening statement may state what he expects in good faith the evidence

will show during trial of the case. Burroughs v. State, 186 Ga. App. 40, 43 (6) (366

SE2d 378) (1988). See also Flournoy v. State, 221 Ga. App. 96, 97 (1) (470 SE2d

488) (1996) (physical precedent only)

      Accordingly, we find no error and affirm.

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




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