Thomas v. StateThomas v. State
- Reporters:
- , , ,
- Before:
- Blackburn
Jаmes Thomas appeals his convictions of possession of cocaine, driving under the influence of cocaine, exceeding maximum limits, and driving without insurance. He contends that the evidence was insufficient to support his convictions and that the trial court erred in denying his motion to suppress. We affirm in part and reverse in part.
1. In his first enumeration of error, Thomas challenges the sufficiency of the evidence. Specifically, he maintains that there is no evidence in the record that he: (1) was intoxicated or under the influence of either alcohol or drugs; (2) possessed a controlled substance, particularly the cocaine that is the State’s Exhibit 1; or (3) did or did not have insurance.
“In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. [Cit.]” Covrig v. Miller. 1 However, deference to the trial court’s findings does not lessen the burden of proof resting on the State to prove every material allegation of the indictment and every essential element of the crimes charged beyond a reasonable doubt.
Thomas filed a motion to suppress which was heard on October 18, 1999. At the hearing, the only issue was whether the stop of his vehicle was illegal. Officer David Morris, who mаde the stop, testified that he activated his radar unit when he noticed Thomas’s vehicle traveling at a high rate of speed. The radar indicated that Thomas was going 61 mph in a 45-mph zone. Morris, who had been traveling in thе opposite direction, turned his vehicle around and stopped Thomas. The officer testified that he checked Thomas’s license and found that it was valid and then asked for proof of insurance. Thomas rеturned to his truck and began searching for his insurance card. Before Officer Morris testified any further, Thomas’s counsel informed the trial court that “our contentions are that the stop of the vehicle was illegal. From thаt point on, we don’t raise an issue. Our issues all occur prior to the physical stopping of the vehicle at the Texaco station.” There was, therefore, no testimony concerning any
thing that occurred after Thomas went to his truck to look for proof of insurance. Thomas’s main contention was that the radar unit had been used within 300 feet of a reduction of speed limit within a municipality, in violation of
Thomas waived а jury trial, and a bench trial was held on November 27, 2000. At that trial, Thomas and .the State agreed to the tendering of a crime lab report establishing that State’s Exhibit 1 was cocaine. Thomas also stipulated to the chain оf custody of Exhibit 1. Both Thomas and the State stipulated to the transcript of the hearing on the motion to suppress, the State reserving its right to supplement the record. In addition, Thomas tendered as exhibits maps and records in support of his contention that the stop of his vehicle was illegal because the radar unit had been used within 300 feet of a reduction of speed limit in violation of
Murrah: On the hearing on the Motion to Suppress, thе officer got to the point where he said he had pulled the car over and walked up to the car. There was a question about whether it was daylight or dark or light or dark inside the vehicle. And at that point, I indicated in the Motion to Suppress hearing that the only issue involved in that proceeding was the legality of the stop, and I think that’s where the State left it right there. And we dealt with that in the hearing on the Motion to Suppress. Then we subsequеntly had a bench trial and we agreed to submit it to you on the record of what was established in the hearing on the Motion to Suppress and the State was going to have an opportunity to put up any additional evidеnce after they reviewed the transcript if they saw any gaps in their proof. That’s where we are. I don’t know if they have got more they want to produce or not.
The Court: I don’t either.
The State: Like I stated to the Court, I have not reviewed the transcript, have not received the transcript, but am prepared to have the Court deal with this case.
After the State indicated that it was prepared for the court to decide the case based on the existing record, the trial court first ruled on the objection to the radar, finding that the unit had not been operated within 300 feet of a speed limit reduction. The court then found Thomas guilty of Count 1, possession оf cocaine; Count 2, driving under the influence of drugs to the extent it was less safe for him to drive; Count 3, operation of a motor vehicle in excess of the maximum speed limit; and Count 4, driving without insurance. The trial court sentenсed Thomas to ten years, three to serve, on Count 1, one year on Count 2, one year on Count 3, and one year on Count 4, all sentences to be served concurrently.
As to Thomas’s contention that there was no evidence in the existing record that he was under the influence of drugs, we agree. Count 2 of the indictment charges Thomas with driving under the influence of cocaine “to the extent that it was less safe for him to drive.” He was thus charged with a violation of
We also agree with Thomas that nothing in the record supports his conviction for driving without insurance. The State had the burden to show that Thomas did not in fact have insurance at the time he was stopped and that he knew that he did not possess insurance, “knowledge of the lack of insurance [being] an essential element of the offense.” Thompson v. State. 4 The only evidence concerning insurance was Officer Morris’s testimony that when he stopped Thomas, Thomas could not find his insurance card. Accordingly, we find that Thomas’s conviction for driving without insurance must be reversed due to insufficient evidence.
As to Thomas’s conviction for possession of сocaine, we find that there was sufficient evidence of that crime. To convict a defendant for possession of cocaine, the State must prove that the defendant was (1) in possession of (2) an illegal substance. As
2. In his second enumeration of error, Thomas contends that the trial court erred in denying his motion to suppress. We find no error.
“When we review a trial court’s decision оn a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.”
Stovall v. State.
5
In support of his contention, Thomas first claims that the State did not establish that the radar unit was not operated within 300 feet of a reduction of speеd limit inside an incorporated municipality, as required by
Thomas also claims that the State did not present any proof that the City of Camilla had a permit authorizing its use of a radar unit, as required by
Judgment affirmed in part and reversed in part.
Pope, P. J., and Mikell, J., concur.
Notes
Covrig v. Miller, 199 Ga. App. 864, 865 (1) (406 SE2d 239) (1991).
Sparks v. State, 195 Ga. App. 589, 590 (394 SE2d 407) (1990).
Green v. State, 260 Ga. 625 (398 SE2d 360) (1990).
Thompson v. State, 243 Ga. App. 878, 881 (1) (534 SE2d 151) (2000).
Stovall v. State, 251 Ga. App. 7, 10 (1) (553 SE2d 297) (2001).
Norman v. State, 197 Ga. App. 333, 336 (398 SE2d 395) (1990).