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Horne v. State.4/29/1999
In the Court of Appeals of Georgia
BL-049C
Darrell Ray Horne appeals his conviction, following a jury trial, for driving under the influence of alcohol (OCGA § 40-6-391 (a) (1)) and driving with an unlawful alcohol concentration (OCGA § 40-6-391 (a) (5)), contending that the trial court erred by: (1) denying his motion for a directed verdict of acquittal; (2) denying his motion to suppress evidence of his intoxication because he was illegally stopped; (3) admitting two sequential test results from an Intoxilyzer 5000; and (4) overruling his Batson objection. For the reasons set forth below, we affirm.
1. Horne contends that the evidence was insufficient to support the verdict.
"On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Horne] 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 standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense." (Punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).
In the early morning hours of November 29, 1997, Corporal David Martin was making routine security checks of businesses in Fayette County. After inspecting a gas station, Martin began following Horne's car, which was the only car in the area at that time of night. Soon thereafter, Horne, who was driving at that time, pulled his car off onto a side road, allowing Martin to pass by him. Martin observed Horne stopping on this side road for no apparent reason in his rear view mirror. Martin continued driving a short way and then pulled into the parking lot of a church where he waited to see if Horne passed by again. Horne did pass by, and, as he did so, Martin saw that the driver was a white male wearing a baseball cap.
Martin followed Horne again and observed him weaving across the centerline into the opposite lane of traffic several times. Horne then pulled into the parking lot of a closed gas station, and Martin continued driving forward. While stopped, Horne changed places with his passenger, Judy Farr. Martin turned his car around and waited for Horne's car to leave the gas station. Afterwards, Martin pulled Horne's car over, and Farr informed Martin that Horne, who was wearing a baseball cap, had been driving, but she switched with him at the gas station because Horne had too much to drink earlier in the evening. Martin noticed that both Horne and Farr smelled like alcoholic beverages, that they were unsteady on their feet, and that their speech was slurred. Martin then arrested both Farr and Horne. The results of an Intoxilyzer 5000 test showed Horne's blood-alcohol concentration to be .157 and .158.
This evidence was ample to support Horne's convictions. See Jackson, supra.
2. Horne contends that the trial court erred by denying his motion to suppress all evidence following the initial stop of his car, alleging that Martin made the stop without the appropriate articulable suspicion. However, " his Court has specifically determined that an officer's observation of a motorist's 'weaving' may serve as sufficient reason to warrant an investigative stop for a possible DUI violation." State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996). Moreover, Horne's attempts to elude Martin support a finding that the appropriate articulable suspicion was pr
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