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Smith v. State7/12/2001
Following a jury trial, Whitney Tyrone Smith appeals his convictions of failure to maintain lane, open container violation, and two counts of driving under the influence. Smith contends that the trial court erred in failing to charge the jury on his sole defense of justification and that his trial counsel rendered ineffective assistance by failing to request a jury charge on justification. We affirm.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Smith] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of face could have found the essential elements of the crime beyond a reasonable doubt. Ryals v. State. See Jackson v. Virginia.
Officer Reimers of the Clayton County Police Department testified that on January 23, 2000, between 3:00 a.m. and 3:30 a.m., he responded to a one vehicle accident. The vehicle had struck a pole and had come to rest on a tree on Godby Road, about 200 feet west of State Route 314. He further testified that he spoke with Smith, who admitted driving the car. He further acknowledged that he was the sole occupant of the vehicle.
Smith had told Officer Reimers that he was stopped at a traffic light at State Route 314 when another vehicle pulled up next to his car, and one of the occupants of the other vehicle got out and tried to pull him out of his vehicle. In attempting to escape, Smith said that he had accelerated forward and in doing so, lost control of his vehicle and had struck the utility pole.
Officer Reimers diagramed the accident scene and testified that the utility pole which Smith struck was approximately 200 feet before the intersection and the tree was approximately 185 feet before the intersection where Smith claimed he was attacked. The officer demonstrated that the accident could not have occurred as Smith told him that it had. Officer Reimers testified that "If he was stopped where he told me he was stopped at the red light like he stated he was and he accelerated forward, the accident would have happened east of the intersection rather than feet back from the location which he initially told me that he was stopped."
Officer Reimers testified that he smelled a moderate odor of an alcoholic beverage when talking to Smith, and that Smith volunteered that he was coming from a club where he had consumed wine prior to driving. Officer Reimers testified that Smith agreed to perform field sobriety tests, including the one-leg stand and the finger to nose exercise, both of which he was unable to successfully perform. Officer Reimers arrested Smith for DUI and read him the implied consent warning at approximately 4:06 a.m.
Smith consented to taking the alcosensor test, which was positive for ethyl alcohol. Officer Reimers then inspected Smith's car, where he found an open bottle of Corona beer in the right hand floorboard of the vehicle which had been partially consumed. Smith was then transported to the Southern Regional Medical Center where a breath test on the Intoxilyzer 5000 was administered. The lower of Smith's two State test results was .174 at 4:52 a.m. Smith requested another breath test and the result of this test at 5:07 a.m. was .170.
At trial, Smith admitted that he had been drinking a Corona beer as he drove to the club at approximately 3:00 a.m. He further admitted that he had consumed an alcoholic beverage while at the club which was before the time of the accident, although he stated that he had only a small amout of Moet wine. At trial, Smith changed the stor
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