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Stephens v. State10/22/2004
Following a bench trial, defendant Robert Wayne Stephens was convicted of one count of driving under the influence ("DUI")-less safe driver (OCGA § 40-6-391(a)(1)), the trial court having directed a verdict for Stephens at the close of the state's evidence on a second count alleging violation of the open container law (OCGA § 40-6-253(b)). He was sentenced to twelve months probation, conditioned upon the payment of a $1,297 fine, applicable fees, the completion of 40 hours of community service, and Level One of the DUI/Risk Reduction Program. On appeal, Stephens challenges the sufficiency of the State's evidence, arguing that his conviction was based upon circumstantial evidence and that the State failed to exclude every other reasonable hypothesis except that of his guilt, the circumstantial evidence of record as not inconsistent with his innocence. Finding Stephens's claim of error to be without merit, we affirm.
On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Green v. State, 244 Ga.App. 565(1), 536 S.E.2d 240 (2000). We neither assess the credibility of the witnesses nor weigh the evidence, but instead determine only whether a rational trier could have found each of the elements of the crime proven beyond a reasonable doubt. Stearnes v. State, 261 Ga.App. 522(1), 583 S.E.2d 195 (2003). "Conflicting testimony is a matter of credibility for the finder of fact to resolve. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State's case, we will uphold the factfinder's verdict." (Punctuation omitted.) Childress v. State, 251 Ga.App. 873, 876(2), 554 S.E.2d 818 (2001).
So viewed, the evidence shows that at approximately 7:46 p.m., on November 17, 2002, Patrolman Mike G. McClure of the East Ellijay Police Department, received an all-points police radio dispatch directing him to be on the look out for a grey Lexus sport utility vehicle, Georgia License No. 17UY6, concerning a possible drunk driver. Patrolman McClure spotted the vehicle "sitting half in [a] parking place and half in the driveway" as he drove into the parking lot of East Ellijay's Maddox Drive Waffle King. The vehicle was running; its headlights were on; and Stephens, while sitting behind the steering wheel, "was laid up against the window passed out." Patrolman McClure noticed what he believed to be fresh vomitus on the driver's side window of the vehicle as he knocked on the door and "hollered" at Stephens to wake him up. Thereafter, Stephens failed the field sobriety tests administered on the scene, inclusive of an Alco-sensor test which was positive for the presence of alcohol. [FN1] Patrolman McClure then placed the defendant under arrest, read him his implied consent warning under OCGA § 40-5-67.1, and asked if he would submit to State-administered chemical testing. The defendant refused.
In testimony given on his own behalf, Stephens admitted that he had driven into the parking lot of the Waffle King tired, having taken a prescribed medication for anxiety after losing his dog earlier in the day while hiking; however, he denied either drinking while driving or vomiting in his vehicle. Otherwise, Stephens testified that he "thought" he had parked in a parking slot at the Waffle King; that he then consumed six to ten ounces of wine in the parking lot, the wine as among the things he brought with him on his day hiking trip; and that he then fell into a deep sleep.
*2 " 'It is well-settled that driving an automobile while intoxicated may be shown by circumstantial evidence. [Cit.]' " Phillips v. State, 185 Ga.App. 54, 55(1), 363 S.E.2d 283 (1987). Likewise, it is settled that to sustain a judgment of conviction, "the evidence need not e
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