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Smith v. State2/6/2004
Following his conviction by a jury of driving under the influence by reason of an alcohol concentration of 0.08 grams or more, [FN1] William Morris Smith appeals, arguing that (1) the evidence was insufficient to support his conviction, and (2) the trial court erred in giving additional instructions to the jury in response to its question. For the reasons set forth below, we affirm.
FN1. OCGA § 40-6-391(a)(5).
1. Smith contends that the evidence was insufficient to support his conviction under OCGA § 40-6-391(a)(5), the "per se" DUI violation. Under that Code subsection, a person is guilty of driving under the influence if "[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."
On appeal, a defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury's verdict. Further, we do not weigh the evidence or determine witness credibility. Instead, an appellate court determines whether the evidence is sufficient to convict the defendant beyond a reasonable doubt. Here, the evidence was sufficient.
(Footnotes omitted.) Bridges v. State. [FN2]
FN2. Bridges v. State, 256 Ga.App. 355, 356(1), 568 S.E.2d 574 (2002).
Viewed in this light, the evidence shows that at about 1:50 a.m. on September 26, 2001, Officer Joel Abbott of the Warner Robins Police Department noticed a white truck that was weaving in its lane and straddling two lanes. Abbott activated his lights and siren. At first, Smith, the driver of the truck, ignored the police officer and continued to drive, but eventually he pulled into a parking lot. He *757 rolled down his window only after the officer banged on it to get his attention.
Smith smelled of alcoholic beverage, his speech was slurred, and his eyes were red and bloodshot. Abbott had Smith perform three field sobriety tests, all of which indicated that Smith was impaired. When the alco-sensor portable breath test had a positive alcohol reading, Abbott placed Smith under arrest and read him the implied consent notice. Smith agreed to submit to the State-administered chemical test of his breath and was taken to the police department. After being given the implied consent notice a second time at the station, Smith was given the Intoxilyzer 5000 test. Smith provided the police with two breath samples. The first sample, taken at 2:41 a.m., showed an alcohol concentration of 0.164; the second sample, taken at 2:46 a.m., indicated an alcohol concentration of 0.156. This evidence was sufficient to convict Smith beyond a reasonable doubt of DUI under OCGA § 40-6-391(a)(5).
2. Smith also argues that the evidence was insufficient to support his conviction for per se DUI under OCGA § 40-6-391(a)(5) because the jury found him not guilty of both driving under the influence to the extent that it is less safe for a person to drive [FN3] and improper lane change. The gravamen of Smith's argument seems to be that his conviction for per se DUI and his acquittals on the counts of less safe DUI and improper lane change are inconsistent verdicts and thus his conviction cannot stand. As we pointed out recently in Mitchell v. State, [FN4]
FN3. OCGA § 40-6-391(a)(1).
FN4. Mitchell v. State, 262 Ga.App. 806, 586 S.E.2d 709 (2003).
**15 [o]ur Supreme Court abolished the inconsistent verdict rule in criminal cases in Milam v. State. [FN5] Thus, Georgia does not recognize an inconsistent verdict rule, which would permit a defendant to challenge the factual findings underlying a guilty verdict on one count as inconsistent with the findings underlying a not guilty verd
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