Fairwell v. State
| Decision Date | 06 February 2012 |
| Docket Number | No. A11A1110.,A11A1110. |
| Citation | 311 Ga.App. 834,717 S.E.2d 332,11 FCDR 3119 |
| Parties | FAIRWELL v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Zell & Zell, Rodney Samuel Zell, Atlanta, for appellant.
Robert D. James, Jr., Dist. Atty., Deborah D. Wellborn, Asst. Dist. Atty., for appellee.
Priscilla Fairwell was convicted of reckless conduct as a lesser included offense of aggravated assault (Count 1), felony obstruction of an officer (Count 2), felony fleeing or attempting to elude a police officer (Count 3), failure to stop upon striking an unattended vehicle (Count 5), and failure to stop at or return to the scene of an accident (Count 6). 1 Fairwell appeals, contending that the trial court gave improper jury instructions, she received ineffective assistance of counsel, the evidence was insufficient to support the verdict on several of the charges, the indictment was defective, and the conviction for fleeing or attempting to elude a police officer was unauthorized. For the reasons that follow, we affirm.
1. Fairwell claims the evidence was insufficient to convict her of felony fleeing or attempting to elude a police officer, failure to stop upon striking an unattended vehicle, and failure to stop at or return to the scene of an accident. We find the evidence, viewed in the light most favorable to the verdict, was sufficient for a rational trier of fact to find Fairwell guilty beyond a reasonable doubt of these offenses.2
The evidence showed that on June 4, 2007, a bicycle-patrol uniformed police officer approached Fairwell in a parking deck to issue her a citation for a tag violation. Fairwell drove away from the officer but later encountered another bicycle-patrol uniformed officer whose badge was displayed. The officer motioned her hand and verbally commanded Fairwell to stop and exit her vehicle. The officer walked in front of Fairwell's vehicle. According to the officer, Fairwell said “F” the police and that she was not stopping for the police. Thereafter Fairwell drove her vehicle into the officer, who jumped back to the side of the vehicle, and according to the officer, injury resulted to the officer. The injured officer, now intending to arrest Fairwell for striking her, gave her a visible sign to stop by placing her hand on the hood of the car and reaching inside the vehicle to grab the steering wheel, but Fairwell “just floored it,” striking two vehicles and the officer's marked bicycle. A third uniformed officer, driving a marked police car, activated the siren and lights on his vehicle and followed Fairwell, but Fairwell refused to stop. She was later apprehended.
(a) Fleeing or attempting to elude a police officer. Count 3 of the indictment charged that Fairwell “did, while fleeing a pursuing police officer, after being given a visual signal to bring the vehicle to a stop, in an attempt to escape arrest for Aggravated Assault, strike another vehicle....” Fairwell argues that she did not know she had struck anyone with her vehicle and that therefore there was no evidence that she knew police officers were attempting to arrest her for aggravated assault.
The felony offense of fleeing or attempting to elude a police officer is defined in OCGA § 40–6–395(a) and (b)(5)(A). OCGA § 40–6–395(a) provides:
It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.
OCGA § 40–6–395(b)(5)(A) pertinently provides:
Any person violating the provisions of subsection (a) of this Code section who, while fleeing or attempting to elude a pursuing police vehicle or police officer in an attempt to escape arrest for any offense, other than a violation of this chapter not expressly provided for in this paragraph: ... (ii) Strikes or collides with another vehicle or a pedestrian ... shall be guilty of a felony....
A criminal intent is necessary to sustain a finding of guilt, 3 and a person is not presumed to act with criminal intent.4 However, the factfinder may consider the circumstances surrounding the act for which the accused is being prosecuted in determining whether the requisite intent is manifested by the circumstances.5
The evidence was sufficient for a jury to find that Fairwell knew she had struck the police officer because Fairwell, having fled from one police officer and then after encountering another officer in front of her vehicle ordering her to stop, indicated her intentions by stating that she would not stop for the police, cursing the police, and driving forward, striking the officer and causing the officer to jump out of the way. After the officer placed her hand on the hood and reached inside to grab the steering wheel, Fairwell fled, striking two vehicles. The evidence was sufficient to support the conviction for felony fleeing or attempting to elude a police officer.6
(b) Failure to stop upon striking an unattended vehicle. Count 5 of the indictment charged Fairwell with colliding with an unattended vehicle and failing to locate and notify the operator or owner of the unattended vehicle of her (Fairwell's) name and address. Fairwell contends there was only “slight” damage to the unattended vehicle, and that being so, there was no evidence she knew she had left the scene after striking the vehicle.
Fairwell's reliance upon Lawrence v. State 7 is misplaced because in Lawrence, unlike in this case, after a collision the defendant stopped to assess any damage and drove away after determining there was none. Indeed, in Lawrence, there was no proof the collision caused “even the slightest dent, ding, or smudge” on the victim's car.8 Consequently, that conviction for misdemeanor hit and run was reversed.9
At trial, the occupant of one of the vehicles Fairwell struck testified that “there was no room for [Fairwell] to drive through.” The witness stated that she parked her vehicle in a position to block Fairwell from exiting the parking deck, but that after a physical altercation occurred between Fairwell and the injured police officer, Fairwell “just floored it ... and went through my truck and this other [unattended] car and she just kept pushing her way through.” A photograph of the unattended vehicle introduced at trial showed a dent and paint damage. Thus, not only was there evidence of damage, but the circumstances surrounding how the damage occurred were sufficient for a jury to find that Fairwell knew she had struck and caused damage to an unattended vehicle.10 The evidence was sufficient to support the conviction for failure to stop upon striking an unattended vehicle.11
(c) Failure to stop at or return to the scene of an accident. Count 6 of the indictment charged Fairwell with colliding with a vehicle and failing to notify the operator or owner of the vehicle of her (Fairwell's) name and address. Fairwell also contends there was no evidence she knew she struck an occupied vehicle.
The result reached in Division 1(b) 12 applies here, based on the facts of this case. A photograph of the damage to the attended vehicle was introduced at trial. It showed extensive scratches and paint damage. Thus, not only was there damage, but the circumstances surrounding how the damage occurred were sufficient for a jury to find Fairwell knew she had struck and caused damage to an attended vehicle.13 The evidence was sufficient to support the conviction for failure to stop at or return to the scene of an accident.14
2. Fairwell claims the trial court violated her due process rights by instructing the jury that several of the crimes could be committed in manners other than as specified in the indictment.
OCGA § 17–8–58 (a), enacted effective July 1, 2007, controls the preservation of objections to jury charges.15 Under this statute, a criminal defendant is required to “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” 16 Subsection (b) precludes appellate review where there is a “[f]ailure to object in accordance with subsection (a),” but this subsection also provides for review for “plain error which affects substantial rights.” 17
The trial of this case occurred in November 2008. Because Fairwell was tried after the effective date of the 2007 enactment of OCGA § 17–8–58 and did not object to the charges on the grounds which she now asserts, she has waived her right to urge error on appeal.18 Nevertheless, Fairwell's claims will be reviewed for “plain error.” 19
A criminal defendant's right to due process may be endangered when ... an indictment charges the defendant with committing a crime in a specific manner and the trial court's jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment. The giving of a jury instruction which deviates from the indictment violates due process where there is evidence to support a conviction on the unalleged manner of committing the crime and the jury is not instructed to limit its consideration to the manner specified in the indictment.20
It is error to give a charge stating that an offense may be committed in more than one manner when (1) only one manner is alleged in the indictment, and (2) facts in evidence raise a reasonable probability that the jury may have convicted the defendant of committing the offense in a manner not charged in the indictment.21
(a) Obstruction of an officer, Count 2. Fairwell contends the trial court erred by instructing the jury that “[a] person commits the...
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