Fitzpatrick v. State

339 Ga.App. 135

793 S.E.2d 446

FITZPATRICK

v.The STATE.

A16A1336

Court of Appeals of Georgia.

October 27, 2016

Elizabeth Vila Rogan, Atlanta, for Appellant.

Robert D. James Jr., Atlanta, Deborah D. Wellborn, for Appellee.

Ray, Judge.

A jury convicted Brendon John Fitzpatrick¹ of serious injury by vehicle (OCGA § 40–6–394 ) and violation of the open container law (OCGA § 40–6–253 ).² He appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to sustain his convictions and that the trial court erred in its instructions to the jury. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we will uphold the jury's verdict. Whitehead v. State , 304 Ga.App. 213, 214 (1), 695 S.E.2d 729 (2010).

Between 4:30 a. m. and 5:00 a. m. on September 5, 2013, Melvin Johnson, Jr., was driving to work, heading toward Northlake on Brockett Road. Fitzpatrick, who was driving in the opposite direction, struck Johnson's vehicle as Fitzpatrick attempted to make a left turn. Although Johnson saw a vehicle heading toward him and braced himself, he did not recall the impact because it rendered him unconscious. An ambulance took Johnson to the hospital following the collision. His right leg was broken and he wore a hip-to-ankle brace for six months and used a wheelchair, crutches, and a walker for months afterward. He could not walk on his own until eight months after the collision, and he still wears knee braces as a result of the incident.

The police officer who responded to the scene spoke to Fitzpatrick, who was standing next to the driver's side of his vehicle. Fitzpatrick told the officer he had been driving. The officer noticed a strong smell of alcohol coming from Fitzpatrick's person, and that his eyes were watery and bloodshot. An open beer can was wedged between the passenger seat and the door. Fitzpatrick was not wearing pants. He was clad only in boxer briefs, a T-shirt, socks, and shoes.

When the officer asked about this, Fitzpatrick acknowledged that he was wearing underwear. Although Fitzpatrick agreed to take the horizontal gaze nystagmus test, on which all six indicators showed alcohol impairment, he refused further field sobriety tests and swore at the officer. The officer then arrested Fitzpatrick based on the results of the test, the odor of alcohol, and his admission that he had been driving. The officer read Fitzpatrick the implied consent warning twice, but declined to read it again when Fitzpatrick requested that he do so a third time. Fitzpatrick refused a breath test but requested a blood test. However, he ultimately refused to sign the consent form for the blood test.

Fitzpatrick later told a nurse at the jail that he had been driving the vehicle. When he testified at trial in his own defense, he acknowledged that he had been drinking beer in the car and that he had been out drinking with friends. While he also acknowledged that he told the officer that he was driving, he claimed at trial that he actually had not been driving and that his friend had been at the wheel.

1. Fitzpatrick argues that the State failed to introduce evidence sufficient to sustain his convictions. We disagree.

(a) Serious injury by vehicle . Fitzpatrick contends that no witness testified to seeing him driving; that the State presented no medical evidence to corroborate the victim's statements about the injuries to his leg; and that no expert or documentary evidence established that, as charged in the indictment, he caused the collision by turning left into the other driver's path. He also argues that the State failed to prove an essential element of the offense as charged in the indictment. The evidence was sufficient to sustain his conviction for this offense.

OCGA § 40–6–394 provides, in part:

Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof ... which renders the body or any member thereof useless through the violation of Code Section 40–6–390 or 40–6–391 shall be guilty of the crime of serious injury by vehicle.

First, the evidence was sufficient to authorize the jury to find that Fitzpatrick was driving. The evidence showed that he told a police officer and a nurse that he had been driving the vehicle. Although he later recanted this admission, the jury was authorized to believe his earlier statements. Whitehead , supra.³ Further, although Johnson did not remember the collision, he testified that he saw a car in his peripheral vision approaching from the left and braced himself for impact. The officer testified that he determined how the accident occurred through the statements of Johnson, and of Fitzpatrick and his passenger. The officer specifically testified that Fitzpatrick told him the accident occurred as Fitzpatrick "was getting ready to make a left turn onto Highway 78 from Brockett Road." See generally Wynn v. State , 236 Ga.App. 98, 100 (2), 511 S.E.2d 201 (1999) (totality of the circumstances, including defendant's physical position and proximity to open beer can indicated that he was in physical control of vehicle and in possession of open container even though no one saw him driving the car).

Second, the evidence was sufficient to authorize the jury to find that Johnson's injuries fell within the provisions of the serious injury by vehicle statute, OCGA § 40–6–394. Although Fitzpatrick argues that the State should have presented expert testimony as to Johnson's injuries, Johnson testified about the injuries to his leg, that it was essentially useless for months, and that he still used leg braces. See Keef v. State , 220 Ga.App. 134, 134, 137 (1) (a), 469 S.E.2d 318 (1996) (evidence sufficient where it demonstrated temporary uselessness of victim's hip and legs). The testimony of a single witness is generally sufficient to establish a fact. See generally Brown v. State , 293 Ga.App. 224, 226 (1), 666 S.E.2d 600 (2008) (State not required to prove victim's injuries with medical evidence where victim testified as to his injuries in an aggravated assault case).

Finally, Fitzpatrick argues that because the jury acquitted him of driving under the influence, the State failed to prove an essential element of the crime of serious injury by motor vehicle "as indicted."⁴

The indictment for the count of serious injury by motor vehicle provided that Fitzpatrick rendered one of Johnson's knees useless "through a violation of Driving Under the Influence, as alleged in Count 2 of this indictment[.]" (Emphasis supplied). This language tracks the language of OCGA § 40–6–394, which provides in pertinent part that a person may be convicted of serious injury by vehicle for rendering a member of the victim's body useless "through the violation of Code Section ... 4–6–391 [driving under the influence.]" (Emphasis supplied).

An analogous case is Leachman v. State , 286 Ga.App. 708, 708–709, 649 S.E.2d 886 (2007), in which this Court upheld the denial of a defendant's plea in bar where the State had prosecuted defendant for vehicular homicide although the statute of limitation had run on vehicular homicide's predicate offense of driving under the influence of alcohol. Leachman involves Georgia's vehicular homicide statute (OCGA § 40–6–393 (a) ), which contains nearly identical predicate language to that of the serious injury by vehicle statute (OCGA § 40–6–394 (a) ). The vehicular homicide statute provides that "[a]ny person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of... [OCGA §] 40–6–391... commits the offense of homicide by vehicle[.]" (Emphasis supplied).

Although Fitzpatrick argues that his acquittal for driving under the influence means that the State failed to prove he "violated" OCGA § 40–6–391 and thus failed to prove an essential element of the crime of serious injury by vehicle, Leachman provides otherwise. Contrary to Fitzpatrick's assertions, Leachman determined that "Georgia's [serious injury by vehicle] statute does not require, as an essential element of the offense, that a defendant be charged with or convicted of the predicate offense." (Emphasis in original.) Leachman , supra at 709, 649 S.E.2d 886. Rather, the language in the serious injury by vehicle statute, OCGA § 40–6–394, stating " ‘through the violation of’ means that the State bears the burden of establishing a causal connection between the defendant's violation of ... [the driving under the influence statute, OCGA §] 40–6–391... and the victim's death." (Citation and punctuation omitted.) Leachman , supra at 710, 649 S.E.2d 886.

Likewise in the instant case, the State met its burden of "establishing a causal connection" between the defendant's violation of OCGA § 40–6–391 and the serious injury by vehicle as shown in the facts above, which include Fitzpatrick's admission that he was driving the car and that he had been drinking in the car. See id. We discern no error.

(b) Fitzpatrick also contends that the evidence was insufficient to support his conviction for violating the open container law. We disagree.

OCGA § 40–6–253 (a) (2) provides in pertinent part that an " ‘[o]pen alcoholic beverage container’ means any bottle, can, or other receptacle that: (A) Contains any amount of alcoholic beverage ; and (B) (i) Is open or has a broken seal; or (ii) The contents of which are partially removed." (Emphasis supplied).

Fitzpatrick argues that the evidence is insufficient because the officer testified that the beer can was...