Butler v. State

• Decision Date: 11 April 2022
• Docket Number: A22A0146
• Parties: BUTLER v. The STATE.
• Court: Georgia Court of Appeals

871 S.E.2d 902

BUTLER

v.The STATE.

A22A0146

Court of Appeals of Georgia.

April 11, 2022

Reconsideration Denied April 28, 2022

Raffauf Joseph M, for Appellant.

Sherry Boston, Deborah D. Wellborn, Decatur, for Appellee.

Phipps, Senior Appellate Judge.

A jury found Christina Butler guilty of first-degree vehicular homicide, driving under the influence of alcohol per se ("DUI per se"), and driving under the influence of alcohol to the extent that it was less safe for her to drive ("DUI less safe"). Butler appeals from the denial of her motion for a new trial, raising ten claims of error. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Krauss v. State , 263 Ga. App. 488, 488 (1), 588 S.E.2d 239 (2003). So viewed, the evidence shows that, on the day in question, Butler attended a barbecue at which she consumed beer.¹ After leaving the barbecue, while driving near the intersection of Covington Highway and Memorial Drive shortly after 11:00 p.m., she struck the victim as he walked across the road approximately 283 feet outside of the nearest crosswalk. Skid marks indicated that, after she engaged her brakes, she traveled across multiple lanes of the five- or six-lane road before hitting the victim. At the time, the weather was clear and the roads were dry. A detective who viewed the scene shortly after the accident testified that the area was well-lit by streetlights and area businesses and that a pedestrian at the location of the collision would have been "illuminated and detectable." He further testified that Butler's car was traveling at approximately 31-35 miles per hour (in a 45-mile-per-hour zone) before she braked and that "speed was not a contributing factor" to the accident.

A police officer who interviewed Butler at the scene detected a strong odor of alcohol on her breath and noticed that her eyes were "extremely bloodshot and glassy." During field sobriety testing, Butler demonstrated all six clues for impairment in the horizontal gaze nystagmus

("HGN") test, and a portable breath test detected the presence of alcohol.² The officer arrested Butler and took her to a hospital, where blood was drawn. The victim died that night as a result of injuries sustained in the collision. Toxicology reports indicated that Butler had a blood-alcohol concentration ("BAC") of 0.084 (plus or minus 0.04) grams per milliliter; the victim's BAC was 0.373 (plus or minus 0.019) grams per milliliter, and he also had cocaine in his system.

The jury found Butler guilty of first-degree vehicular homicide, DUI per se, and DUI less safe. The trial court merged the two DUI convictions into the vehicular-homicide conviction and sentenced Butler to seven years in prison, to be followed by eight years on probation. This appeal followed.

1. Butler contends that the evidence was insufficient to support her convictions. We disagree.

"When a criminal defendant challenges the sufficiency of the evidence supporting [her] conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Galvan v. State , 330 Ga. App. 589, 592 (1), 768 S.E.2d 773 (2015) (citation and punctuation omitted); see also Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "[I]t is the sole province of the trier of fact to resolve conflicts in the testimony," and this Court neither weighs the evidence nor determines witness credibility. Evans v. State , 315 Ga. App. 863, 864, 729 S.E.2d 31 (2012). "[A]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the trier of fact's verdict will be upheld." Id. (citation and punctuation omitted).

(a) Butler first contends that the evidence was insufficient to show that her driving ability was impaired so as to support her DUI less safe conviction. We disagree.

As charged in Butler's indictment, the State was required to prove that she drove a motor vehicle while under the influence of alcohol to the extent that it was less safe for her to drive. See OCGA § 40-6-391 (a) (1) ; Allen v. State , 257 Ga. App. 246, 247 (1), 570 S.E.2d 683 (2002). As discussed above, the State presented evidence that Butler had a BAC level of 0.084 grams,³ had a strong odor of alcohol on her breath and extremely bloodshot and glassy eyes, demonstrated all six clues for impairment in a field sobriety test, and struck a pedestrian walking across a road in dry, well-lit conditions. This evidence was sufficient for the jury to infer that Butler drove her car while under the influence of alcohol to the extent that it was less safe for her to do so. See Brent v. State , 270 Ga. 160, 161 (1), 510 S.E.2d 14 (1998) (evidence that the defendant "had alcohol on his breath, registered positive on [a portable breath test], failed all six parts of the HGN test, had substandard performances on [other] tests, and, in the expert opinion of [a law enforcement officer], was less safe to drive," was sufficient to support his conviction for DUI less safe, even absent evidence that he committed an unsafe act while driving); see also generally State v. Young , 334 Ga. App. 161, 165, 778 S.E.2d 402 (2015) (circumstantial evidence may be sufficient for the State to establish that "the defendant was operating or in physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for [her] to drive"); Yarbrough v. State , 241 Ga. App. 777, 781-782 (4) (b), 527 S.E.2d 628 (2000) (causing a traffic accident, along with other evidence of intoxication, may be sufficient to establish the offense of DUI less safe).

(b) Butler further maintains that the evidence was insufficient to support her DUI per se conviction because: (i) her blood was not tested within three hours of the accident; and (ii) there was no evidence as to when she last consumed alcohol. Again, we disagree.

Under the applicable statute, and as charged in her indictment, the State was required to prove that Butler drove while her BAC level was 0.08 grams or more "within three hours after such driving ... from alcohol consumed before such driving ... ended." OCGA § 40-6-391 (a) (5) ; see Yarbrough , 241 Ga. App. at 782 (4) (c), 527 S.E.2d 628. Importantly, "the statute does not require that the person be tested within three hours." Yarbrough , 241 Ga. App. at 782 (4) (c), 527 S.E.2d 628. Rather, the State need only show that the accused's BAC level was greater than the statutory limit "during the three-hour period after [s]he ceased driving." Id.

It is undisputed that Butler's blood was drawn no later than 2:15 a.m., between three hours and three hours and fifteen minutes after she hit the victim. A forensic toxicologist testified that, at that time, Butler's BAC was either at its highest concentration or had started to decline since she last consumed alcohol. And neither the first officer to respond (who spoke with Butler) nor the officer who arrested Butler gave any indication that she had any opportunity to consume alcohol at any point after the collision or that alcohol was found in her car or on her person.

The above evidence was sufficient for the jury to infer that Butler last consumed alcohol before the collision and that her BAC level was 0.084 or higher at the time of the collision. And even if the evidence on these points arguably may be deemed entirely circumstantial, when viewed in its entirety, it was sufficient for the jury to reject any reasonable theory other than Butler's violation of the DUI per se statute. See Mason v. State , 199 Ga. App. 691, 692-693 (1), 405 S.E.2d 747 (1991) (although a conviction based on circumstantial evidence is authorized only if the evidence excludes every other reasonable hypothesis save the defendant's guilt, it need not exclude every inference or hypothesis, and whether this test has been satisfied is a question for the jury) (citing former OCGA § 24-4-6, now codified at OCGA § 24-14-6 ); accord Hill v. State , 297 Ga. 675, 678 (2) (b), 777 S.E.2d 460 (2015) ; see also generally State v. Loy , 251 Ga. App. 721, 722, 554 S.E.2d 800 (2001) ("[I]t is not necessary for a conviction of driving under the influence ... that the driver actually be seen behind the wheel driving the car while under the influence. Such facts, as any others, may be shown by circumstantial evidence.") (citation and punctuation omitted).

(c) Butler also contends that the evidence was insufficient to establish the causation element of her vehicular-homicide conviction. Once again, we disagree.

To establish Butler's guilt of first-degree vehicular homicide as alleged in her indictment, the State was required to prove that, while driving a motor vehicle and without malice aforethought, Butler caused the victim's death through a violation of OCGA § 40-6-391. See OCGA § 40-6-393 (a). As relevant here, OCGA § 40-6-391 defines the offenses of DUI less safe and DUI per se. See OCGA § 40-6-391 (a) (1), (a) (5). "In vehicular homicide cases, the State must prove that the defendant's conduct was the ‘legal’ or ‘proximate’ cause, as well as the cause in fact, of the death." Miller v. State , 236 Ga. App. 825, 828 (2), 513 S.E.2d 27 (1999). While the State must establish "a causal connection between the defendant's violation of the DUI statute and the victim's death," it need not show "that the defendant actually commit[ted] an unsafe act." Corbett v. State , 277 Ga. App. 715, 717 (1) (b), 627 S.E.2d 365 (2006).

An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that

...