Phillips v. StatePhillips v. State
- Reporters:
- , ,
- Before:
- McMurray
Lead Opinion
Defendant was convicted of driving under the influence of alcohol and this appeal followed. Held:
1. Defendant contends that the verdict was contrary to the еvidence and that the trial court erred in denying his motion for a directed verdict of acquittal. We disagree. Viewing the evidence in the light most favorable to the Stаte, we find the following facts:
On January 12, 1986, at about 4:30 a.m., the police found defendant in his pickup truck on a dirt road near a trailer park. Defendant had passed out and was slumped over the steering wheel. The truck was “almost in the middle of the road,” “sitting on the wrong side of the street.” In the words of one officer, it was “parked kind оf crossways the road.” The engine was running and the lights were on. Defendant’s speech was slurred; the smell of alcohol was on his breath. Defendant was arrested for driving under the influence of alcohol. He was advised of his rights and asked whether he was driving the truck. Defendant told the police that “he didn’t know how he got there.” He did not deny driving thе truck.
At trial, defendant did not deny that he was intoxicated at the time in question. He maintained, however, that he did not drive his truck. Defendant testified that he spent the previоus evening drinking with a female companion at a place called Carrigans; that she lived in the trailer park; that he and his female companion left Carrigаns when it closed; that his companion drove the truck because she was in better shape than defendant; and that he fell asleep on the way back to thе trailer park. Defendant also averred that he turned on the engine to keep warm (it was cold outside) and that when he was awakened by the police he had no idea how he had gotten there. The fe*55male companion was not called as a witness.
“It is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. Stephens v. State, 127 Ga. App. 416 (192 SE2d 870) (1972). It is not necеssary that the circumstantial evidence exclude every reasonable inference or hypothesis except guilt of an accused, but’ only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. The jury itself decides whether every reasonable hypothesis except that оf guilt of the defendant has been excluded. Rogers v. State, 139 Ga. App. 656, 659 (229 SE2d 132) (1976).” Lewis v. State, 149 Ga. App. 181 (1), 182 (254 SE2d 142).
The evidence, though circumstantial, justified a finding of defendant’s guilt beyond a reasonable doubt. Lewis v. State, 149 Ga. App. 181, supra; Fuller v. State, 166 Ga. App. 734, 735 (305 SE2d 463); Drayton v. State, 175 Ga. App. 803 (334 SE2d 720). Defendant was found sitting behind the wheel of a truck which was parked in the middle of the road. The engine was running and the lights were on. Although no one saw defendant driving the truck, the circumstantial evidence dеmonstrated he had been in physical control of a moving vehicle shortly before the police arrived. “ ‘The jury was authorized not to accept an аlternate hypothesis offered by (appellant).’ Porter v. State, 162 Ga. App. 661 (2) (292 SE2d 529).” Fuller v. State, 166 Ga. App. 734, 735 (1), supra.
2. Defendant enumerates error upon the refusal to give the following request to charge: “I charge you thаt
3. The assertion is made that defendаnt’s statements to the police and the results of an intoximeter test were admitted erroneously over objection because they were the fruits of an illegаl arrest. In this regard, it is argued that the police lacked probable cause to arrest *56defendant for driving under the influence of alcohol.
The facts and circumstances within the knowledge of the policе were sufficient to warrant the belief by a man of reasonable caution that a crime had been committed. See Cornelius v. State, 165 Ga. App. 794 (302 SE2d 710). As defendant was not arrested illegally, the results of the intoximeter test and defendant’s statements were not tainted.
4. Defendant complains that in overruling his “tainted evidence” objection, the trial court rеsted its ruling upon an erroneous legal theory. This complaint has no merit. When a ruling of the trial court is legally correct, it will be upheld regardless of the reason аssigned. State v. Brittain, 147 Ga. App. 626, 627 (249 SE2d 679); Futch v. State, 145 Ga. App. 485, 486 (1), 487 (243 SE2d 621).
Judgment affirmed.
Deen, P. J., Pope, Benham and Beasley, JJ., concur. Birdsong, C. J., Banke, P. J., Carley and Sognier, JJ., dissent.
Dissenting Opinion
dissenting.
I respectfully dissent. In Georgia, as elsewhere in the United States, a defеndant is not required to prove his innocence; rather, the State must prove a defendant’s guilt beyond a reasonable doubt. This court cannot relieve the State of this burden by an assumption, unsupported by logic or evidence, that an intoxicated person passed out under the steering wheel of his parked vehicle is, or must have been, operating a moving vehicle while under the influence of alcohol.
The majority opinion infers that because appellant did not call his girl friend as a witness his testimony did not present a reasonable hypothesis save that of guilt. Aside from the fact that appellant did not have to prove his innocence, such an inference overlooks the fаct that there is a very plausible explanation for not calling the witness, namely, that if the girl friend testified she would incriminate herself by testifying that she drove the truck while under thе influence of alcohol, and thus, she could refuse to testify.
In Carr v. State, 169 Ga. App. 679 (2) (314 SE2d 694) (1984), the trial court charged the jury that “being in actual physical control of a vehicle might be accomplished merely ‘by sitting therein on а public highway or elsewhere, and while in control and under the steering *57wheel, starting the motor, under which circumstances being in the actual physical control of thе vehicle is a separate offense from the actual driving of the vehicle.’ ” The court also recharged the jury that “the term ‘movement’ did not necessarily rеfer to movement of the vehicle itself but could also refer to ‘acts which engage the machinery of the vehicle, that alone or in sequence will set in mоtion the motive power of the vehicle.’ ” In reversing on the ground that these charges were an incorrect statement of the law, we held: “These charges wеre not a correct statement of current law but were evidently derived from judicial interpretations of former Code Ann. § 68-1625 (Ga. L. 1953, Nov. Sess., pp. 565, 575), under which it was unlawful for аny person under the influence of alcohol to operate any vehicle, without regard to whether it was moving. See e.g., Flournoy v. State, 106 Ga. App. 756 (128 SE2d 528) (1962). That statute was superseded by Ga. L. 1974, pp. 633, 693, which serves as the basis for the present code section. The former proscription against merely operating a vehicle while under the influencе of intoxicating liquor has been replaced by a proscription against driving or being ‘in actual physical control of any moving vehicle’ while under the influencе of alcohol or drugs.
Appellant’s explanation as to what he was doing in the truck was plausible, and was supported by the fact that the truck was in the road directly across from the trailer where his girl friend lived. Since there was no evidence, circumstantial or otherwise, that appellant was operating or in physical control of a moving vehicle, I would reverse the conviction in this case.
I am authorized to state that Chief Judge Birdsong and Presiding Judge Banke join in this dissent.