395 S.E.2d 630 | Ga. Ct. App. | 1990
Appellant was convicted by a jury of reckless conduct (OCGA § 16-5-60 (b)). In his appeal, he contends that the trial court erred in failing to give a charge on circumstantial evidence and in restricting his counsel’s closing argument. He also argues that the evidence was insufficient to support his conviction. Held:
1. Viewed in the light most favorable to the jury’s verdict, the evidence adduced at trial reflects the following: Appellant and the victim had lived across the street from each other for approximately
2. Appellant contends that the trial court erred in not charging OCGA § 24-4-6, which provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” “ ‘An instruction on [OCGA § 24-4-6] is required only when the case is totally dependent upon circumstantial evidence.’ [Cits.]” Arnett v. State, 245 Ga. 470 (4) (265 SE2d 771); Beard v. State, 193 Ga. App. 877 (2) (389 SE2d 384). In the instant case there was direct evidence that appellant drove his truck directly at the victim and stopped just short of striking her. Appellant, however, contends that since an essential element of reckless conduct is “consciously disregarding a substantial and unjustifiable risk,” and the dhly evidence of this element was circumstantial, the trial court was required to give the charge. We disagree. In Lee v. State, 177 Ga. App. 8 (338 SE2d 445), this court recognized the line of cases supporting appellant’s argument, including McGruder v. State, 213 Ga. 259 (98 SE2d 564), but found that Arnett v. State, supra, was binding precedent. We are satisfied that the pertinent principle of law contained in Arnett, supra, and Beard, supra, is controlling in view of the facts in this case, and find no basis for abandoning the legal precedent found therein. See generally State Farm &c. Ins. Co. v. Astro Leasing, 194 Ga. App. 515, 518 (390 SE2d 885). Accordingly, we find no error with the trial court’s failure to charge OCGA § 24-4-6.
3. During closing arguments, the trial court sustained the State’s objection to defense counsel’s comment about the State’s failure to call the investigating officer as a witness. “As a general rule, ‘the defendant is not permitted to comment on the State’s failure to produce certain witnesses.’ [Cit.] ” Braggs v. State, 189 Ga. App. 275 (3) (375 SE2d 464). We find no error with the application of the general rule
Judgment affirmed.