A jury found Brian Bayer guilty of driving under the influence of alcohol to the extent it was less safe to drive, speeding, and driving with an open container of alcohol. Bayer appeals. We affirm.
*709 Viewed in the light most favorable to support the verdict, the evidence showed that Bayer went to a friend’s house on the evening of the arrest. While there, Bayer drank beer. After leaving his friend’s house, Bayer was stopped by a police lieutenant after his radar calculation and visual speed estimation showed Bayer traveling at approximately 60 mph in a 45 mph speed zone.
The officer testified that Bayer’s vehicle smelled of alcohol, that Bayer had bloodshot, watery eyes, a flushed face, and slurred speech, and that Bayer fumbled for his license and had difficulty opening the glove box to produce his insurance card. The officer further stated that Bayer was unsteady on his feet. Bayer failed the horizontal gaze nystagmus test and the one-leg stand test. He then refused to take any further field sobriety tests and, after being read the implied consent warning, refused to take the state-administered breath test.
The police officer noticed a can of beer lying on the floorboard of the vehicle and what appeared to be beer dripping from the dashboard. Evidence of a similar transaction was admitted.
1. In his first enumeration of error, Bayer contends he was denied his constitutional right to a fair trial because the state’s police officer, who was a witness for the state, spoke to defense witnesses during the course of the trial. At the motion for new trial hearing, it was shown that during the trial, Bayer’s three witnesses were sitting in the hallway across from the doors leading into the courtroom. After the police officer testified, he left the courtroom and engaged in conversations with Bayer’s witnesses. The officer said to Kenneth Bayer: ‘You must be Brian’s brother,” and continued with “I’m sorry to have to do what I have to do to your brother but it’s my job.” According to Kenneth Bayer, the officer continued talking about other matters and Kenneth Bayer felt uneasy. However, Kenneth Bayer admitted that the police officer did not talk about Kenneth Bayer’s testimony.
While Bayer’s witnesses claimed they were intimidated by the police officer and subsequently forgetful and distracted on the witness stand, there is no evidence that the officer in any way threatened or coerced Bayer’s witnesses. See generally
Simmons v. State,
2. In his second enumeration of error, Bayer asserts that the police officer’s conduct discussed in Division 1 violated the rule of sequestration. OCGA § 24-9-61 provides that in all cases either party
*710
shall have the right to have the witnesses of the other party examined out of the hearing of each other. The Supreme Court of Georgia has held that the purpose of this rule is to prevent a witness who has not testified, or who has not completed his or her testimony, from overhearing and having his or her testimony affected by the testimony of another witness. See
Lackey v. State,
Bayer does not allege that the police officer spoke with the witnesses about their testimony or that any witness heard his testimony. As in Owens, supra, this exchange did not violate the purpose of the rule of sequestration.
3. The trial court properly admitted evidence of a previous DUI offense into evidence as a similar transaction. Two conditions must be satisfied before evidence of independent crimes is admissible. First, there must be evidence that the defendant was, in fact, the perpetrator of the independent crime. Bayer does not contest this issue. Second, there must be sufficient similarity or connection between the independent crime and the offense charged so that proof of the former tends to prove the latter.
Goodwin v. State,
In the context of DUI cases, we have previously held that “[u]nlike assault or robbery or other crimes against the person or property of a victim and which can be committed under varying factual circumstances, the crime[ ] of. . . driving under the influence [is] essentially committed under the same factual circumstances. The type of vehicle driven or the degree or source of intoxication may vary, but it is the simple act of driving . . . while under the influence that establishes the commission of [the crime]. A prior act of driving . . . while in that condition would, regardless of any slight variance of circumstances, be relevant to prove bent of mind or course of conduct.”
Kirkland v. State,
In both the instant and the previous cases Bayer admitted drinking beer before driving, and in both cases the officer smelled beer. “Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind ‘to get behind the wheel of a vehicle when it’s less safe for him to do so.’ ”
Fields v. State,
4. In bis fourth enumeration of error, Bayer asserts the evidence was insufficient to support the jury’s verdict. We disagree. The evidence showed that, based on radar and the officer’s visual estimation, Bayer was speeding; that he admitted to drinking alcohol earlier that evening; that an officer smelled the odor of alcohol in Bayer’s vehicle; that an officer saw an open can of beer lying on the floorboard of the vehicle and beer dripping from the dashboard; that Bayer had bloodshot, watery eyes, a flushed face, and slurred speech; that Bayer fumbled for his license and had trouble opening the glove box to produce his insurance card; that Bayer was unsteady on his feet; that Bayer failed two field sobriety tests; and that he refused to take any further field sobriety tests.
On appeal, Bayer no longer enjoys the presumption of innocence, and this Court views the evidence in the light most favorable to support the verdict without speculating which evidence the jury chose to believe or disbelieve.
Gurlaskie v. State,
5. Based on our findings in Divisions 1-4, the trial court did not err in denying Bayer’s motion for new trial.
Judgment affirmed.