Deering v. State
| Decision Date | 16 May 2000 |
| Docket Number | No. A00A0438.,A00A0438. |
| Citation | 535 S.E.2d 4,244 App. 30,244 Ga. App. 30 |
| Parties | DEERING v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
W. Eugene Jessup, for appellant.
Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.
Following a jury trial, William Barry Deering appeals his convictions for possession of a firearm by a convicted felon, driving under the influence, driving without a valid license, driving with an open container of alcohol, and carrying a concealed weapon. Deering contends that the evidence was insufficient to support the verdicts against him. For the reasons set forth below, we affirm.
On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Deering] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(Punctuation omitted.) Kovacs v. State, 227 Ga.App. 870(1), 490 S.E.2d 539 (1997). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
Viewing the evidence in this light, the record shows that Officer Mason Brewer responded to an early morning call from a citizen who stated that a man was standing outside a home firing a gun. When Officer Brewer arrived at the scene, he found a blue Ford Crown Victoria blocking the driveway, and Deering was sitting in the driver's seat with his torso slumped over to the passenger's side. Officer Brewer noticed that the car's engine was running, and it appeared to him that the car had just been parked. There were no other people in the vicinity at the time Officer Brewer arrived at the scene.
Officer Brewer then pulled his car alongside Deering, who started cursing and screaming. Officer Brewer noticed that Deering's hair and clothing were disheveled, there was the smell of an alcoholic beverage on his breath, and his eyes were red and glassy. Deering's demeanor was aggressive and agitated, and, because of this fact, Officer Brewer requested that Officer Franklin come to the scene to provide backup. When Officer Franklin arrived at the scene, he searched Deering's vehicle and found a loaded pistol wedged between the front seats of the car. In addition, Officer Brewer subsequently found an open can of beer on the floor of the car. Although Deering refused to take a test to determine whether he had been drinking, he later admitted that he had consumed a beer earlier in the evening. 1. Deering contends that his convictions for driving under the influence, driving with an open container, and driving without a valid license must be reversed because the State failed to provide sufficient evidence that he actually drove the car in which he was found. We disagree.
Appellant is correct that to be guilty of the offense of driving under the influence one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol. Carr v. State, 169 Ga.App. 679(2), 314 S.E.2d 694 (1984). However, Phillips v. State, 185 Ga.App. 54(1), 363 S.E.2d 283 (1987). Frye v. State, 189 Ga.App. 181, 375 S.E.2d 101 (1988).
(Emphasis in original.) Johnson v. State, 194 Ga.App. 501(1), 391 S.E.2d 132 (1990).
In this case, Deering was found in the driver's seat of a car with its engine running. In addition, the arresting officer testified that the car appeared to have been recently parked and no other persons who could have driven the car were on the scene. At the time that he was confronted, Deering was unkempt, his eyes were glassy, and he smelled of an alcoholic beverage. Deering could produce no valid driver's license, and an open container of beer was found in the car.
Although [Officer Brewer] did not see the car moving, he observed circumstances from which a jury could infer...
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