Ghant v. State

368 Ga.App. 472

890 S.E.2d 379

GHANT v. The STATE.

A22A1738

Court of Appeals of Georgia.

June 28, 2023

Monte Kevin Davis, Atlanta, for Appellant.

Jamie K. Inagawa, Joseph B. Myers Jr., for Appellee.

Doyle, Presiding Judge.

A Fayette County jury found Valerie Ghant guilty of driving under the influence of alcohol to the extent it was less safe to do so, improper parking (too close to a traffic-control signal), and improperly parking a vehicle (too far from the curb). ¹ Ghant appeals from the state court's denial of her motion for new trial, arguing that the evidence was insufficient, the trial court plainly erred in instructing the jury, and she was denied the effective assistance of counsel. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the verdict, ² the evidence shows the following. Sometime around midnight on November 19, 2017, a concerned citizen placed a 911 call to report a driver asleep at the wheel of her vehicle, which was running with the windshield wipers on, at the intersection of Highways 314 and 279. The caller had tried knocking on the window of the vehicle, but could not rouse the driver.

Investigator Erik Richards responded to the scene and had to repeatedly beat on the passenger window of Ghant's vehicle to wake her up. Although the vehicle's engine was running, Ghant was leaned over to the side and was not responding. When Ghant did respond, Richards noticed that her eyes were red and bloodshot and her speech was slurred, and a strong odor of an alcoholic beverage was coming from inside the vehicle.

Deputy Ken Farley testified that he arrived at the scene after Richards. Farley also noticed that Ghant's speech was slurred and her eyes were red and bloodshot. Farley proceeded to perform several field sobriety tests on Ghant, including the Horizontal Gaze Nystagmus ("HGN"), the walk-and-turn test, and the one-leg stand. After Ghant failed each of the tests and a preliminary breath test was positive for alcohol, Farley placed her under arrest.

After the State rested its case, Ghant testified that she had a glass of wine at a restaurant before driving and that she fell asleep while waiting on a delayed traffic light. After the jury found her guilty on all three counts, she filed a motion for new trial. Following a hearing, the trial court denied the motion. This appeal followed.

1. Ghant challenges her convictions, arguing that, because there were no results of any chemical test of her breath, blood, or urine, or other bodily substance, the evidence was not "overwhelming."

As Ghant seems to acknowledge in her brief, the evidence need not be overwhelming to support a conviction.

On appeal from a criminal conviction, [the appellate court] view[s] the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia , ^{[3 ]} and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the reviewing court] must uphold the jury's verdict. ⁴

Besides the evidence that Ghant had bloodshot eyes, slurred speech, and an odor of alcohol on her breath and person, she failed all of the field sobriety tests, and registered positive on the alco-sensor. ⁵ A rational trier of fact could thus find her guilty of DUI less safe beyond a reasonable doubt. ⁶

2. Ghant contends that the trial court plainly erred in instructing the jury by failing to instruct on the proper use of demonstrative evidence, instructing the jury that it "must" consider the HGN test as evidence, and by instructing the jury on DUI per se when she was only charged with DUI less safe.

Ghant's failure to object at trial "precludes appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects the substantial rights of the parties. In such cases, the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings." ⁷

(a) Ghant argues that the trial court erred in failing to instruct the jury on demonstrative evidence or on how to evaluate and/or weigh demonstrative evidence.

During Deputy Farley's testimony, the State played video from his patrol vehicle's dash camera that showed Ghant taking the field sobriety tests. After explaining the clues that he was looking for in an HGN test, Farley testified that the jury could not see the nystagmus from the view of the dash camera. The State then offered a demonstrative video depicting a DUI suspect's eyes during an HGN evaluation. Farley testified that he had viewed the video and that it was an accurate representation of what nystagmus looked like.

"A trial court has wide discretion in admitting demonstrative evidence, and a party offering such evidence must lay a proper foundation establishing a similarity of circumstances and conditions." ⁸ Here, before the demonstrative video was played, the trial court stressed to the jury that the video did not depict Ghant or her eye, advised the jury that the video was not the type of exhibit that would go into the jury room, and instructed that the video was for "demonstrative purposes only, just to show what the officer [was] looking for[.]"

Ghant has not cited any authority to show that this instruction was erroneous. ⁹ Further, we presume that the jury followed the trial court's instructions and considered the video with the understanding that the video did not depict Ghant and was being introduced for demonstrative purposes only. ¹⁰ Under these circumstances, Ghant has not shown error, much less plain error. ¹¹

(b) Ghant argues that the trial court erred in instructing the jury that it "must" consider the HGN test as evidence that Ghant was "impaired."

Ghant misstates the court's instruction, which required the jury to consider whether the officer substantially complied with the scientific procedures. The trial court instructed the jury:

The [HGN] test is based on the well-known and medically accepted principle that the nystagmus can be caused by the ingestion of alcohol. The [HGN] test is an accepted common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol. So long as the officer substantially complied with the scientific procedures of the [HGN] test, the jury must consider the test as evidence.

The court also instructed the court that it was the sole judge of the credibility of the witnesses.

The first part of the trial court's instruction regarding the HGN test follows the charge that we have previously approved, ¹² and the second portion accurately stated the law regarding the jury's role in evaluating a witness's credibility. ¹³ Ghant has thus failed to show error, much less plain error. ¹⁴

(c) Ghant contends that the trial court erred by instructing on DUI per se when she was only charged with DUI less safe.

The trial court instructed the jury that Ghant was only charged with DUI less safe and only gave an instruction on that charge. When instructing the jury on intent, the trial court did instruct the jury that moving traffic violations were strict liability offenses. The court continued:

In the context of a traffic violation such as Driving Under the Influence, the State will have met its burden of proof as to the defendant's criminal intent, if you should find beyond a reasonable doubt that the defendant intended to operate her vehicle at a time when (a) she was under the influence of alcohol to the extent that she was less safe to do so than she would have been if sober, or (b) that she had a blood or breath alcohol concentration of .08 grams or more[.]

"Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence." ¹⁵ Moreover, while "[i]t is true that a jury charge must be adjusted to the evidence, ... in order to have reversible error, there must be harm as well as error." ¹⁶ Because the charge as a whole in this case was not likely to confuse the jury, reversal is not required.

(d) Ghant contends that the combined effect of the trial court's errors in instructing the jury likely confused the jury into finding her guilty of a crime that was not alleged in the accusation. Because the charge as a whole presented the issues in such a way that was not likely to confuse the jury, we will not disturb the verdict. ¹⁷

3. Ghant contends that her trial attorney provided ineffective assistance of counsel by failing to object to the exclusion of Ghant's daughter from the courtroom, failing to object to improper opinion testimony by Deputy Farley, and failing to object to or request certain jury instructions.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance resulted in prejudice to the defendant. To satisfy the prejudice prong, a defendant must establish a reasonable probability that, in the absence of counsel's deficient performance, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. If an appellant fails to meet his or her burden of proving either prong of the Strickland test, ^{[18 ]} the reviewing court does not have to examine the other prong. ¹⁹

(a) Ghant argues that trial counsel improperly acquiesced to the State's...