Following a jury trial, Stacy Leonard Hicks was convicted of felony fleeing or attempting to elude a police officer
On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we neither weigh the evidence nor judge the credibility of the witnesses, but determine only if, after viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found the defendant guilty of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
So viewed, the evidence shows that in the early morning hours of April 3, 2010, an officer with the Effingham County Sheriff’s Office received a missing vehicle call for a maroon Mercedes sport utility vehicle. He spotted the vehicle and saw it collide with a steam roller parked beside the road. The vehicle was pulling a trailer, and the collision caused the trailer to detach and spill mattresses and other items into the roadway. After the collision, the officer activated his lights and began pursuit of the vehicle. The officer testified, and the video from the camera mounted on his police car shows, that after he activated his lights, the vehicle accelerated, drove through a stop sign without stopping, crossed over the white fog line on the edge of the roadway several times, and turned into two residential driveways before the driver, Hicks, abandoned the vehicle and fled on foot.
1. Hicks argues that the evidence was insufficient to convict him of felony, rather than misdemeanor, fleeing or attempting to elude. We agree.
The indictment charges Hicks with “willfully flee[ing from] a pursuing police vehicle in an attempt to escape arrest... in traffic conditions which placed the general public at risk of receiving serious injuries, after having been given a visual signal to bring his vehicle to a stop by an officer.”
The signal to stop may be “by hand, voice, emergency light, or siren.” OCGA § 40-6-395 (a). The only evidence of a signal to stop in the instant case was the officer’s activation of his lights after Hicks collided with the steam roller. As an initial matter, we note that the State presented no evidence of the speed limit in the area or the speed at which Hicks was driving, presented no evidence of a collision with a pedestrian or other vehicle in the time period after the officer activated his lights, and presented no evidence that Hicks left the state. Further, the officer testified that although he smelled alcohol on Hicks’ breath, he did not perform any tests to check Hicks’ intoxication level.
Additionally, the State presented no evidence of traffic conditions that placed the general public at risk of serious injury. The transcript contains no testimony related to risk to the general public, and the video of the chase, as recorded by the camera mounted on the police cruiser, shows empty roadways containing no other vehicles or pedestrians during the pendency of the pursuit. The prosecution cites Hinton v. State, 297 Ga. App. 565 (677 SE2d 752) (2009), arguing that so long as the jury viewed a police video of the chase, jurors determined “first hand” whether the evidence supported a finding that Hicks fled “in traffic conditions [which] placed the general public at risk of receiving serious injuries,” and thus the verdict cannot be overturned. This contention is incorrect.
In Hinton, for example, while the jury viewed a video of the chase, the evidence showed that the defendant reached speeds in excess of
It is well settled that for the jury’s verdict to be upheld, there must be some competent evidence, even if contradicted, to support each fact necessary to make out the State’s case. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). Here, the State presented no such competent evidence and proved none of the elements required under OCGA § 40-6-395 (b) (5) (A). Thus, we must vacate Hicks’ felony sentence. Because the evidence does support a misdemeanor conviction, we remand the case with direction that a conviction and sentence be entered for a misdemeanor offense. See generally Schneider v. State, 312 Ga. App. 504, 509 (4) (718 SE2d 833) (2011).
2. Hicks contends that the trial court erred in imposing the maximum felony sentence without considering a less severe sentence. In light of our decision in Division 1, we need not reach this enumeration of error.
Judgment vacated and case remanded with direction.
Hicks also was convicted of driving under the influence, failure to obey stop sign, weaving over the roadway, and obstruction of an officer, hut he does not appeal those convictions.
OCGA § 40-6-395 was substantially amended effective July 1, 2012. See Ga. L. 2012, p. 729, § 1. Thus, we review Hicks’ case under the prior version of the statute in effect when he was convicted. See Ga. L. 2010, p. 256, § 2, effective July 1, 2010.