After a bench trial, the State Court of Forsyth County convicted Bradley Burchett of possession of an alcoholic beverage by a person under 21 years of age, OCGA § 3-3-23 (a) (2). Burchett appeals, contending the evidence was insufficient as to venue and as to the elements of the offense. Finding no error, we affirm.
Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and on appeal, the appellate court construes the evidence in favor of the judge’s findings of fact. The appellate court does not weigh the evidence or determine witness credibility but merely determines the sufficiency of the evidence.
Jackson v. Virginia,
Viewed in the light most favorable to the trial court’s findings of fact, the record shows the following. On September 3,2005, an officer stopped Burchett, who was under 21 years of age, at a roadblock in Forsyth County. The officer smelled the odor of an alcoholic beverage on Burchett’s breath, and asked Burchett if he had been drinking that night. Burchett told the officer “he had [had] a beer earlier that evening.” Burchett did not give any other information about when or where he had consumed that beer, nor did he offer such evidence at trial. The officer did not see Burchett consume any alcoholic beverage, did not observe any containers of alcohol in Burchett’s car, and did not test Burchett’s blood, breath or urine for the presence of alcohol.
1. Burchett contends that the State failed to prove beyond a reasonable doubt that he possessed alcohol in Forsyth County and, therefore, that the evidence was insufficient as to the essential element of venue. 1 Specifically, Burchett contends that
his admission that he had consumed one beer some time earlier on the evening of his arrest is not sufficient to prove that the offense might have occurred in Forsyth County, Georgia. In fact, the consumption of alcohol could as easily have occurred in any county of the State of Georgia or even outside the State of Georgia.
Under Georgia law, “[i]f in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” OCGA§ 17-2-2 (h). In
Hanson v. State,
2. Burchett contends that the evidence failed to eliminate the hypothesis that he was not guilty of the offense pursuant to OCGA § 3-3-23 (c). That subsection provides, in pertinent part, that the prohibition contained in subsection (a) (2)
shall not apply with respect to the possession of alcoholic beverages for consumption by a person under 21 years of age when the parent or guardian of the person under 21 years of age gives the alcoholic beverage to the person and when possession is in the home of the parent or guardian and such parent or guardian is present.
Where certain conduct is generally prohibited, but where a statutory exception permits the conduct under specified circumstances, the exception amounts to an affirmative defense.
May v. State,
Judgment affirmed.