Duncan v. State

• Decision Date: 13 July 1992
• Docket Number: No. A92A0200,A92A0200
• Citation: 421 S.E.2d 336,205 Ga.App. 181
• Parties: DUNCAN v. The STATE.
• Court: Georgia Court of Appeals

Page 336

421 S.E.2d 336

205 Ga.App. 181

DUNCAN v. The STATE.

No. A92A0200.

Court of Appeals of Georgia.

July 13, 1992.

Reconsideration Denied July 27, 1992.

Certiorari Denied Oct. 2, 1992.

John L. Watson, Jr., Jonesboro, for appellant.

Robert E. Keller, Dist. Atty., Gregory K. Hecht, Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Duncan was tried and convicted of operating a motor vehicle after having been declared an habitual violator and of driving under the influence of alcohol and appeals.

1. In his first enumeration, Duncan claims that the trial court erred in permitting Johnny Hull to testify since the State mistakenly identified him as "Johnny Hill" in response to Duncan's request for a witness list pursuant to OCGA § 17-7-110.

This enumeration is without merit. Hull, whose address had also been provided to Duncan, had been subpoenaed previously to Duncan's divorce trial. "The record here shows that the witness was identified sufficiently for counsel to have had an opportunity to interview [him] prior to trial. Furthermore, 'remedies available for defendant are a continuance or a mistrial,' [cits.] neither of which was sought here. The trial judge did not abuse his discretion in permitting the witness to testify and in allowing [Hull's] testimony to remain in the record." Moody v. State, 258 Ga. 818, 821(4), 375 S.E.2d 30 (1989); see also Gardner v. State, 172 Ga.App. 677(6), 324 S.E.2d 535 (1984).

2. In his second enumeration of error, Duncan claims that there was insufficient evidence to support his conviction for driving under the influence pursuant to OCGA § 40-6-391(a)(1). Although Duncan's argument in this regard is unclear, he apparently argues that because there was no testimony regarding his unsafe driving, the conviction cannot stand. It also appears that he argues that the evidence was insufficient to convict because one of the investigating officers did not observe Duncan driving. This enumeration is without merit.

Two witnesses, one of whom was a police officer, testified that they saw Duncan driving. See generally Melendy v. State, 202 Ga.App. 638(1), 415 S.E.2d 62 (1992). That there was no testimony concerning Duncan's unsafe driving is immaterial to establishing a violation of OCGA § 40-6-391(a)(1). " 'There is no requirement that the person actually commit an unsafe act. (Cits.)' [Cit.]" State v. Smith, 196 Ga.App. 876, 877, 397 S.E.2d 304 (1990); Moss v. State, 194 Ga.App. 181, 390 S.E.2d 268 (1990).

There was evidence that Duncan was observed drinking a beer while driving and that empty beer cans were found in the vehicle. There was also evidence that Duncan ran from the car into his home and locked himself up; that he refused to submit to any chemical tests of his bodily fluids; that he smelled of alcohol and his face was flushed; that his eyes were bloodshot and watery; that his speech was slurred and sometimes incomprehensible; that he was screaming and shouting when he got out of the vehicle; that he appeared confused and belligerent; and, that he was unsteady when walking. There was also testimony that Duncan appeared intoxicated to the extent that it was unsafe for him to operate his vehicle. A rational trier of fact could reasonably have found him guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent that it was less safe for him to drive. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Merrell v. State, 192 Ga.App. 100(1), 383 S.E.2d 905 (1989).

3. In his third enumeration of error, Duncan contends that there was insufficient evidence to support his conviction for operating a vehicle after having been declared an habitual violator in that the state failed to prove that Duncan received appropriate notice in compliance with OCGA § 40-5-58(b). He argues that the signature of receipt is not his and that the address was improper. This enumeration is without merit for several reasons, the most obvious of which is that Duncan admitted at trial that he received the notice. See also Johnson v. State, 194 Ga.App. 501(2), 391 S.E.2d 132 (1990).

4. Apart from changing the number of the indictment count, Duncan's fourth enumeration of error is identical to enumeration 3 and appears to be unsupported by argument. This enumeration is deemed abandoned. See Court of Appeals Rule 15(c)(2).

5. In his fifth enumeration of error, Duncan claims that the trial court erred in refusing to allow into evidence a certified copy of a document labeled "judgment" in a previous habeas corpus action. The November 3, 1986 judgment which Duncan sought to introduce concerned one of the three offenses on which a previous habitual offender status was based. The court determined that Duncan's conviction for that offense was invalid. The judgment then indicates that the determination that Duncan was an habitual violator was made in July 1984. Duncan relies here on ambiguous language in the judgment which ordered that the Commissioner of Public Safety return Duncan's license to him.

Despite the confusing nature of the document, we find no error in the exclusion of the evidence. First, although the judgment refers to a July 1984 determination, included in the record before us is a document dated November 6, 1985 determining that Duncan was an habitual offender. The record also contains a subsequent denial of his petition for habeas corpus and an order from April 18, 1988...