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Anderson v. State2/25/2003
Michael Anderson was charged with homicide by vehicle in the first degree, serious injury by vehicle, driving under the influence of alcohol ("DUI"), driving with a suspended license, failure to maintain lane, driving without insurance, operation of a vehicle without current license plate, and failure to use safety belts. The indictment charged him with DUI to the extent that he was a less safe driver and per se DUI, based on a blood alcohol concentration of 0.10 grams or more within three hours of operating a motor vehicle. The trial court granted a directed verdict to Anderson on the per se DUI charge, because the state failed to prove that his blood was drawn within three hours of his operation of the vehicle. At the close of the evidence, Anderson pleaded guilty to the charges of driving with a suspended license, driving without insurance, operation of a vehicle without a current license plate, and failure to use safety belts. The jury returned a guilty verdict on the remaining charges of vehicular homicide, serious injury by vehicle, DUI -- less safe driver, and failure to maintain lane. Anderson filed a motion for a new trial, which was denied. He appeals his conviction, assigning error to the trial court's instruction to the jury. We affirm.
"On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict." (Citation omitted.) Cupe v. State, 253 Ga. App. 851 (560 SE2d 700) (2002). So viewed, the record shows that after lunch on May 24, 2001, Anderson left the Bulldog Tavern in a white Pontiac Firebird and turned onto Highway 76, traveling west. Jacob Wayne Gribble, who was driving a bread truck on Highway 76 when Anderson pulled out in front of him, testified that Anderson drove erratically, almost struck numerous mailboxes on the right side of the road, and frequently stopped for no apparent reason. Another witness, Amanda King, observed Anderson that day and described his driving as "dangerous." She testified that after pulling onto the highway, Anderson "took off really fast, then he was weaving[,] then he would pass a car going over a hill. He would speed up real fast and slow down almost to a stop."
Near the intersection of Highway 76 and Persimmon Road, Anderson encountered a truck pulling a backhoe at a slow rate of speed. Despite the fact that he was traveling around a blind curve in the road, Anderson veered left into a lane of on-coming traffic to pass the truck. Five motorcycles were traveling together in that lane, and Anderson struck three of them, leaving one man dead and another partially paralyzed.. Both Gribble and King witnessed the accident.
John Hueber testified that he, his brother Luke Hueber, Billy Sawyer, David Johnson, and Mike Martin were on their annual motorcycle trip when they encountered Anderson's vehicle. The five men were experienced motorcyclists who had taken safe riding courses, wore helmets and other safety equipment and clothing, and rode in formation. John Hueber led the group on the date in question, and he testified that they had been traveling at approximately 45 or 50 miles per hour before slowing down as they neared a curve in the highway. Heuber further testified that as the motorcycles approached the blind curve, he suddenly saw Anderson's white Firebird move quickly into their lane of traffic to pass a truck. Hueber attempted to avoid the car, but his motorcycle struck the Firebird near the driver's side headlight. He recalled his motorcycle turning sideways and rolling, but he suffered only bruises.
Luke Hueber was traveling between 50 and 100 feet behind his brother. He testified that he observed the white Firebird "dart out to try to pass the cars" and subsequently stri
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