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Pecina v. State10/22/2001
Everardo Martinez Pecina was convicted of driving under the influence of alcohol to the extent that it was less safe for him to drive than if he was not so influenced ("DUI"), OCGA § 40-6-391 (a) (1), and serious injury by vehicle, OCGA § 40-6-394. He challenges the constitutionality of OCGA § 40-6-394 as applied in his case and of Rule 31.3 of the Uniform Rules of Superior Court ("USCR"), the sufficiency of the evidence, the admission of evidence of similar transactions, and the trial court's instructions to the jury. For the reasons which follow, we affirm.
Pecina was driving a pickup truck that struck, virtually head on, an automobile driven by Mike Phillips. Just before the collision, Pecina's vehicle traveled the wrong way down one side of the road. Phillips's vehicle was stopped in a turning lane as he prepared to turn left into the parking lot of the hospital where his mother worked. His mother, Gemina Phillips, age 67, was seated in the front passenger seat. Injuries to Ms. Phillips were the basis of the charge of serious injury by vehicle.
When Corporal Sylvia Smith arrived on the scene, she found Phillips's automobile sitting in the road and Pecina's truck off the road. Phillips, with blood coming from his mouth, exited his vehicle; Ms. Phillips was unconscious and bleeding. Pecina was still in his truck, lying back as if he was unconscious. He had a cut approximately one inch long on his scalp. Inside his truck was an open beer can, and the floorboard was wet, as if the beer had recently spilled. There were empty beer cans behind the seat and in the truck bed.
1. Pecina contends that the "serious injury by vehicle" statute, OCGA § 40-6-394, is unconstitutional as applied to him. Specifically, he maintains that the language "by seriously disfiguring his body or a member thereof" is so vague and ambiguous as to fail to place him on notice as to what type of injuries will constitute a violation of this statute, thus depriving him of due process and equal protection under the law, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Art. I, Sec. I, Par. II of the 1983 Georgia Constitution.
"A statute is not unconstitutionally vague if its language provides persons of ordinary intelligence with notice as to what it prohibits so they may conduct themselves accordingly." Land v. State, 262 Ga. 898, 899 (1) (426 SE2d 370) (1993). " constitutional attack to a statute on a vagueness ground that does not involve a First Amendment challenge must be decided on the particular facts of each case." State v. Boyer, 270 Ga. 701 (1) (512 SE2d 605) (1999). Thus, the issue is whether OCGA § 40-6-394's prohibition against causing bodily harm to another "by seriously disfiguring his body or a member thereof" through the violation of OCGA § 40-6-391 gave Pecina due notice that it prohibited the conduct for which he has been convicted. This Court has not previously addressed this question. But in Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980), this Court found virtually identical language to be constitutional. Baker decided a challenge to the aggravated battery statute, now found at OCGA § 16-5-24 (a), specifically the language prohibiting maliciously causing bodily harm to another "by seriously disfiguring his or her body." We see no distinction between the language used in the aggravated battery statute and that used in the serious injury by vehicle statute, and thus no reason to consider the serious injury by vehicle statute unconstitutionally vague in every instance.
Under the facts of this case, the proscription against "seriously disfiguring" a bodily member is not applied in an unconstitutional manner. Ms. Ph
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