Hendrix v. StateHendrix v. State
- Reporters:
- , ,
- Before:
- Banke
Lead Opinion
The appellant was tried for leaving the scene of an accident, driving without insurance, and for violating
The state presented an eyewitness who testified that he had seen the appellant’s car approaching him, that it had veered across the centerline onto his side of the road, and that it had then run off the road on its own side, knocking down a railroad signal post. The witness identified the car by its license number, which he recorded. The appellant admitted having driven the car on the date and at the location in question but denied that the state’s witness had been present or that she had driven across the centerline or hit anything. Held:
1. “It is the function of the jury to determine the credibility of witnesses and to weigh and resolve any conflicts in the testimony. This court must view the evidence in a light most favorable to the jury’s verdict. [Cit.] Viewing the evidence in that light, we are satisfied that any rational trier of fact could have found appellant guilty *666beyond a reasonable doubt. [Cit.]; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Blackman v. State, 178 Ga. App. 88 (1) (342 SE2d 24) (1986).
2. The appellant contends that the order of restitution was not authorized by the evidence. We disagree. It may reasonably be inferred from the testimony of the eyewitness in this case that immediately after crossing over the centerline the appellant overcompensated, causing her vehicle to veer back to the right to such an extent that it left the roadway and struck the signal post. As used in the criminal restitution statute, the term “ ‘[damages’ means all damages which a victim could recover against an offender in a civil action . . . based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.”
3. The appellant enumerates as error the admission, during the sentencing phase of the trial, of a copy of a bill showing the cost of repairing the signal post. It is contended that this document was inadmissible because it was irrelevant, the original was not accounted for, and it constituted hearsay. The first of these contentions is clearly without merit. As for the second and third, the witness who identified the bill testified that he was employed as an investigator for the railroad, that he was the custodian of the record, and that he had received the document from “the accounting department in Jacksonville” in the normal course of business. We hold that this constituted a sufficient showing to authorize the admission of the document as a “photostatic, microphotographic, or photographic reproduction of [an] original writing or record made in the regular course of business to preserve permanently by such reproduction the writing or record. . . .”
Judgment affirmed.
Birdsong, C. J., Deen, P. J., McMurray, P. J., Sognier, Pope, and Beasley, JJ., concur. Carley and Benham, JJ., concur in part and dissent in part.
Concurrence Opinion
concurring in part and dissenting in part.
I concur in Divisions 1 and 2 of the majority opinion. However, I must agree with the dissent to the extent that it opines that the copy of the bill showing the cost of repairing the signal post, relied upon by the trial court in fixing the amount of restitution, was inadmissible. In addition to the decisions relied upon in the dissent, in the whole court case of City of Saint Marys v. Stottler Stagg &c., 163 Ga. App. 45, 47-48 (292 SE2d 868) (1982), the majority of this Court made it clear *667that “[u]nless there is foundation testimony as required by the statute that the actual [document itself was] made in the regular course of business, it cannot be said that the evidence which is being offered is in fact a business record coming within the ambit of [
Concurrence Opinion
concurring in part and dissenting in part.
Although I agree with the majority’s holding that the evidence was sufficient to convict appellant of a violation of
1. “The amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.”
I agree completely with the majority’s finding that it may be inferred that appellant overcompensated after crossing the centerline, and that the overcompensation caused her car to veer off the roadway and into the signal post. However, appellant was not convicted of and sentenced for overcompensating, for veering off the roadway, for striking the signal post, or even for failing to maintain control of her vehicle. She was sentenced for crossing the centerline. While that may have been an act of negligence, it was not the act of negligence which proximately caused the damage to the railroad and for which the railroad could recover its damages from appellant. In our haste to ensure that the victim of appellant’s bad driving be recompensed, we must not lose sight of the mandate of the statute. The victim is entitled to such damages as it could recover from appellant for the act for which *668she was sentenced. She was sentenced for crossing the centerline of the road. If the railroad, in a suit to recover damages from appellant, proved no more than that she crossed the centerline of the road, it would not be entitled to damages. If it went on to prove that she then failed to maintain control of her vehicle and that her vehicle damaged railroad property while out of her control, it certainly would be entitled to recover damages from her. But, as I noted above, appellant was not sentenced for failing to maintain control of her vehicle, but for crossing the centerline. That act, the one for which she was sentenced, was not the proximate cause of the railroad’s damages, and the order of restitution was contrary to this State’s law and should be vacated.
2. The majority notes that the grounds upon which appellant objected to the admission of the evidence proffered by the State to establish damages were that it was irrelevant, that the original was not accounted for, and that it was hearsay. I find all three grounds meritorious.
First, because of my conviction that the imposition of a requirement of restitution was illegal, I am of the opinion that the evidence was irrelevant, there having been no showing that the railroad would be entitled to damages on the basis of appellant’s act of crossing the centerline of the road.
Second, the Code section on which the majority relies to excuse the State’s failure to account for the original of the document requires that the copy be made in the regular course of business. There was no testimony offered at trial to establish that the copy proffered as evidence was made in the regular course of business and no testimony was offered to account for the original. Having failed to meet the standard imposed by
Third, the State did not lay the foundation required by
For all the reasons stated above, I concur in the affirmance of appellant’s conviction, but dissent to the affirmance of the imposition *669of restitution.