 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
APPERSON v. STATE3/17/1997
Defendant Apperson appeals his conviction of the offenses of driving under the influence and speeding. Held:
1. Prior to trial, the State served notice of its intent to introduce similar transaction evidence at trial. After the jury was sworn, the trial court addressed the issue of the State's notice of intent to introduce similar transaction evidence and after a brief colloquy during which the prosecutor stated the substance of the testimony which he expected the similar transaction witness to give, the trial court ruled that the similar transaction testimony would be admitted.
The similar transaction witness was the last presented by the State and testified as to a prior occurrence during which he stopped defendant after being informed by a police dispatcher that defendant's vehicle had run over a curb while leaving a store parking lot. The similar transaction witness testified as to asking defendant to perform a field sobriety test and his refusal to do so, but was not permitted to answer a question before the jury concerning whether he smelled any odor about defendant. Outside the presence of the jury, the witness testified as to a strong odor of alcohol about defendant and that his speech was slurred. Perhaps based in part on challenges to the authority of the similar transaction witness to make the stop of defendant, the trial court determined that a sufficient proffer had not been made to permit admission of the similar transaction evidence. Upon the return of the jury, the jurors were instructed that the trial court had ruled out the similar transaction evidence, that they were to draw no inferences of any kind from the matter taken up in that regard, and that they were to disregard and not consider it in any way.
Defendant's first three enumerations of error are concerned with the attempt to introduce similar transaction evidence. These contentions raise issues as to a failure to hold an appropriate hearing pursuant to Uniform Superior Court Rule 31.3, and the admission of hearsay and other inappropriate similar transaction evidence. Nonetheless, the trial court's eventual ruling sustained defendant's objections and excluded the proffered similar transaction evidence including striking that testimony which had been presented before the jury. There was no further objection or other request for action following this ruling and the curative instructions. Under these circumstances there is nothing preserved for appellate review. McCoy v. State, 194 Ga. App. 244, 245 (4) (390 S.E.2d 251); Hall v. State, 180 Ga. App. 881, 882 (3), 883 (350 S.E.2d 801).
2. Defendant's remaining enumeration of error challenges the sufficiency of the evidence to authorize his conviction for driving
under the influence. "`OCGA § 40-6-391 (a) (1) makes it unlawful for a person to "drive or be in actual physical control of any moving vehicle while: Under the influence of alcohol to the extent that it is less safe for the person to drive . . ." There is no requirement that the person actually commit an unsafe act.' Moss v. State, 194 Ga. App. 181, 182 (390 S.E.2d 268). `Public drunkenness requires proof that a person is and appears to be in an intoxicated condition, which is manifested by boisterousness, indecent condition or act, or by vulgar, profane, loud or unbecoming language'; `(t)he offense of driving under the influence of alcohol to the extent it is less safe to drive does not require that any of these facts be alleged and proved.' (Emphasis supplied.) State v. Tweedell, 209 Ga. App. 13 (432 S.E.2d 619). Moreover, driving a motor vehicle while under the influence of alcohol may be established by circumstantial evidence. Schoicket v. State, 211 Ga. App. 636, 637 (2) (44
Page 1 2 Georgia DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|