555 S.E.2d 209 | Ga. Ct. App. | 2001
A Fulton County jury found Dargan Bums guilty of violating OCGA § 40-6-271, duty upon striking an unattended vehicle. He appeals, claiming that the trial court erred in denying his motion for directed verdict and that the trial court abused its sentencing discretion by imposing a $1,000 fine that included reimbursement for indigent defense fees. Upon review, we affirm Burns’ conviction, but vacate the fine imposed and remand for resentencing as to such.
Viewed in a light most favorable to upholding the jury’s verdict,
1. Bums first claims the trial court erred in denying his motion for directed verdict of acquittal. The standard of review for the denial of a motion for a directed verdict is the same as that for reviewing the sufficiency of the evidence to support a conviction. “Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
immediately stop and . . . then and there either locate and notify the operator or owner of such vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle or . . . leave in a conspicuous place on the vehicle struck a written notice giving the name and address of the driver and the owner of the vehicle doing the striking.3
Here, it is undisputed that Bums did not leave written notification of his damage to the vehicles. And the evidence is that Bums did not attempt to locate and notify the owners of the vehicles he stmck. Instead, when confronted with his actions by the parking lot owner, Bums refused to exit his vehicle and wanted to leave the parking lot. The parking lot owner frustrated this desire when he would not permit Burns to exit the lot until the owners of the damaged vehicles were located.
On appeal, Bums challenges the State’s failure to call to the stand the owners of the vehicles. He claims that, absent the car owners’ testimony, there was insufficient proof that he did not notify them when he went back inside the club. We disagree. Bums’ contention involves purely a jury question as to the weight of proof regarding an element of the offense. If the State can prove through means other than the owners’ testimony that Burns did not notify them of the damage to their vehicles, the State is not required to call the owners. “[T]he credibility and weight to be accorded the evidence are . . . task[s] for the jury.”
In this case, Bums did not take the stand and never claimed that he contacted the owners of the cars when he went back inside the club, so there was no factual allegation with regard thereto for the State to rebut. The State’s evidence showed that Bums had no intention of notifying the owners of the damage to their vehicles, but wanted to leave the parking lot. The evidence shows that Bums did not obtain the make, model, or description of either of the vehicles that he hit but, instead, reentered the club immediately after exiting his car. The parking lot was full and the club was filled with people; thus, without any information about the cars that had been hit, Bums could not have identified the car owners in order to notify them. Finally, when the police located Burns, he was standing at the bar in the club, not attempting to locate the car owners who had
2. Bums was declared indigent on the basis of an indigent affidavit and was appointed a county public defender. Following his conviction, a sentencing hearing was held during which the trial court called into question the validity of Burns’ indigent affidavit, because a defense witness who testified during trial stated that Burns is an accountant. Upon questioning, it was established that Bums was formerly Comptroller for Morehouse College and had been an accountant for 20 years, serving in both a public and private capacity. He is a certified public accountant (CPA) and had just started his own full service CPA firm, Burns & Associates. Bums told the trial court that he was indigent at the time he filed his affidavit because he had incurred substantial losses when his brokerage accounts with E*Trade and Ameritrade lost money “during the course of the year as the dot corns went down.” So, in filing his prior year’s taxes, Burns declared an income of “in excess of $50,000,” but declared “Schedule C and Schedule D losses in excess of $70,000, which created net losses for the year.” No documentation was presented in support of his contentions. Nor was there evidence of Burns’ assets, expenses, income, or outstanding obligations. Burns stated that prior to trial he had been receiving unemployment and was still indigent at the time of sentencing because he had just started his new business.
The trial court then imposed a fine of $1,000. Defense counsel objected that the sentence was “a little excessive” for a misdemeanor, and the trial court stated, “Well, I’ve got under consideration to make him pay some attorney’s fees.”
OCGA § 17-12-10 (c) provides that to the extent that a person covered under the standards to determine indigence is able to provide for the employment of an attorney, “the court concerned may order him to provide for this payment or reimbursement.” However, “under OCGA § 17-12-10 (c), a superior court may tax additional
Judgment affirmed, sentence imposing fine vacated and case remanded.
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Goddard v. State, 244 Ga. App. 730, 733 (2) (536 SE2d 160) (2000).
OCGA § 40-6-271 (a).
Ashley v. State, 240 Ga. App. 502, 503 (1) (523 SE2d 901) (1999).
Contrary to a contention contained as a corollary to this first enumeration of error, the failure to call the owners of the vehicles did not deny Burns his “right to confront his accusers.” The owners of the vehicles were not Bums’ accusers, nor did they witness the incident in question. Since it was unnecessary for the State to call the car owners in order to prove the essential elements of its case, no confrontation clause issue arises from the failure to call them.
1985 Op. Atty. Gen. 203, U85-32.
Raines v. State, 242 Ga. App. 727, 731 (3) (531 SE2d 158) (2000).
(Citations and punctuation omitted.) Hall v. State, 189 Ga. App. 824, 825 (2) (377 SE2d 907) (1989).
Owens v. State, 187 Ga. App. 262, 263 (1) (369 SE2d 919) (1988).
Reid v. State, 224 Ga. App. 524, 527 (481 SE2d 259) (1997).