Clark v. State, 66750

• Decision Date: 06 January 1984
• Docket Number: No. 66750,66750
• Citation: 169 Ga.App. 535,313 S.E.2d 748
• Parties: CLARK v. The STATE.
• Court: Georgia Court of Appeals

Page 748

313 S.E.2d 748

169 Ga.App. 535

CLARK v. The STATE.

No. 66750.

Court of Appeals of Georgia.

Jan. 6, 1984.

Rehearing Denied Jan. 19, 1984.

Certiorari Dismissed March 8, 1984.

Howard Tate Scott, Athens, for appellant.

Ken Stula, Sol., for appellee.

CARLEY, Judge.

Appellant was convicted of driving under the influence of alcohol and of public indecency. He appeals.

At trial, the evidence established that a police officer on a late-night routine patrol observed appellant urinating behind a car in a shopping center parking lot. Appellant then entered the car and began driving down the street. The officer stopped appellant, not for erratic driving, but to arrest him for public indecency. However, since there was an odor of alcohol on appellant's breath, the officer also charged him with driving under the influence. An auto-intoximeter test of appellant's breath registered a blood alcohol content of .11, which was sufficient to raise a presumption of intoxication under OCGA § 40-6-392(Code Ann. § 68A-902.1).

1. Appellant asserts that OCGA § 40-6-392(b)(3)(Code Ann. § 68A-902.1)--which provides that a presumption of intoxication is raised if a person's blood alcohol level is .10 or higher--unconstitutionally shifts the burden of proof to the defendant to show his innocence in violation of the due process rights guaranteed by our state and federal constitutions. This assertion has previously been decided adversely to appellant in McCann v. State, 167 Ga.App. 368, 306 S.E.2d 681 (1983).

2. Appellant further asserts that OCGA § 40-6-392(b)(3)(Code Ann. § 68A-902.1), even if constitutional on its face, was unconstitutionally applied in the instant case. Appellant contends that the charge on the statute given to his jury impermissibly directed the return of a verdict of guilty on the basis of the statutory presumptions of intoxication. Upon examining the charge as a whole, we find that it passes constitutional muster, inasmuch as the jury was instructed that the statutory presumptions were rebuttable. Nonetheless, "we believe that the charge quoted in McCann, supra (2), when used in connection with the instructions on the statutory presumptions, provides the jury with a clearer understanding of the legal impact of presumptions. The quoted portion of the McCann charge should always be given by trial courts when instructing on OCGA § 40-6-392[Code Ann. § 68A-902.1]." Olsen v. State, 168 Ga.App. 296, 308 S.E.2d 703 (1983).

3. Appellant enumerates as error the trial court's failure to grant his motion for a directed verdict of acquittal on the public indecency charge. He further contends that the evidence was insufficient to support his conviction of that offense.

Appellant was charged by accusation with making a lewd appearance in a state of partial nudity in a public place, a violation of OCGA § 16-6-8(3)(Code Ann. § 26-2011). The only evidence supporting this charge was the testimony of the arresting police officer. He testified that he observed appellant urinating on the ground in the shopping center parking lot, although he did not actually see appellant's sexual organs.

" 'Whether an act is decent or indecent depends upon the time, the place, and all the circumstances surrounding its commission, including the intention, actual or implied, of the actor.' [Cit.] 'Lewd,' in summary, at least means a moving away from some form of community morality norms towards an amorality, immorality or obscenity, which in the final analysis within community standards as to particular acts, as to acceptability or unacceptability, is best left to a jury for determination." Collins v. State, 160 Ga.App. 680, 683, 288 S.E.2d 43 (1981). The evidence supported the jury's conclusion that, under all the circumstances, appellant's act was lewd.

"Public place" is defined by OCGA § 16-1-3(15)(Code Ann. § 26-501), as "any place where the conduct involved may reasonably be expected to be viewed by people other than members of the actor's family or household." Whether an act is performed in a "public place" is a jury question. White v. State, 138 Ga.App. 470, 226 S.E.2d 296 (1976). This court has held that "[a]n act is 'public,' however, when it is committed in a 'public place' and members of the public casually passing by would be likely to see it and one or more actually did see it." Byous v. State, 121 Ga.App. 654, 655, 175 S.E.2d 106 (1970). From the evidence presented in the instant case, the jury could readily have determined that the shopping center parking lot was a...