Frasard v. State

• Decision Date: 27 June 2013
• Docket Number: No. A13A0629.,A13A0629.
• Parties: FRASARD v. The STATE.
• Court: Georgia Court of Appeals

322 Ga.App. 468

745 S.E.2d 716

FRASARD

v.The STATE.

No. A13A0629.

Court of Appeals of Georgia.

June 27, 2013.

Michael C. Frasard, pro se.

Sherry Boston, Wystan Getz, Attorney for Appellee.

BRANCH, Judge.

On appeal from his conviction for speeding, Michael Frasard argues pro se and in eleven enumerations of error that the evidence was insufficient, that the State failed to show compliance with statutes mandating notice to motorists of speed limits and the use of speed detection devices, that the device used to detect Frasard's speed was not properly authorized for use by the arresting officer, and that the speeding citation itself was invalid. Although these assertions lack merit, we vacate Frasard's conviction and remand for resentencing because the trial court should have merged the two counts on which he was found guilty.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the record shows that on the morning of April 4, 2012, a DeKalb County police officer was conducting traffic enforcement on Peachtree Road just over the DeKalb County line. The officer saw a green Lincoln Continental traveling northbound at what appeared to be a “high rate of speed.” On the basis of his training, the officer estimated that the car was traveling in excess of the posted speed limit of 35 mph. The officer then trained a laser device on the Lincoln and obtained a reading that the car was traveling at 54 mph. Frasard was issued a citation and then indicted on two counts of speeding-the first for traveling 54 mph in a 35–mph zone, and the second for traveling “in excess of the posted speed limit.” A jury found Frasard guilty on both counts, and the trial court sentenced him to 12 months probation and a $500 fine plus costs.

1. In five enumerations of error, Frasard argues that the evidence concerning his rate of speed and the venue of the incident was insufficient to sustain his conviction. We disagree.

(a) The State need not prove that a driver “was traveling at [a] precise rate of speed in order to obtain a conviction” for speeding. In the Interest of J.D.S., 273 Ga.App. 576, 577, 615 S.E.2d 627 (2005), citing Jones v. State, 258 Ga.App. 337, 338, 574 S.E.2d 398 (2002). “ ‘[T]o be guilty of speeding, one need only exceed the designated speed limit. Greater speeds by specified increment affect only the punishment and are therefore not material allegations to prove the crime of speeding.’ ” In the Interest of J.D.S. supra, quoting Jones, supra. Because “ ‘[a]n officer's estimate of speed is sufficient to support a conviction on a speeding violation,’ ” the officer's testimony that Frasard was traveling above the speed limit was sufficient to sustain his conviction. J.D.S., supra, quoting In the Interest of B.D.S., 269 Ga.App. 89, 91(1), 603 S.E.2d 488 (2004); see also OCGA §§ 40–6–181 (defining offense of driving a vehicle “in excess of ... maximum limits”), 40–6–182, 49–6–183 (setting out exceptions thereto).

(b) Although Frasard argues that the State failed to prove that he was speeding in DeKalb County, both the citation and the officer's testimony as to the location of his enforcement action placed the incident within the boundaries of that county. Frasard himself testified, moreover, that he drove over the county line before he saw the car of the officer who pulled him over. This evidence was sufficient to establish venue in DeKalb County. Brewster v. State, 300 Ga.App. 143, 145, 684 S.E.2d 309 (2009) (officer's testimony was sufficient to prove venue of speeding incident in a particular county).

2. Frasard argues that his conviction must be overturned because the State failed to prove the existence of signs at the county line indicating that (a) the speed limit was 35 mph and (b) speed detection devices were in use. We disagree.

(a) OCGA § 40–6–181(b)(1) provides that the maximum speed in an “urban or residential district” is 30 mph. State and county authorities have the power to vary maximum speeds, with certain limits, “on the basis of an engineering and traffic investigation.” See OCGA §§ 40–6–182, 40–6–183(a); Dept. of Transp. v. Watts, 260 Ga.App. 905, 907, 581 S.E.2d 410 (2003) (governmental actions under OCGA § 40–6–181 and 40–6–182 “are analogous to the legislative act of making law”).

The arresting officer's testimony established that the speed limit in effect at the scene was 35 mph, or greater than the statutory maximum of 30 mph. Frasard has cited no authority, and we have found none, that requires a governmental unit to prove its compliance with OCGA §§ 40–6–182 or 40–6–183 in order to obtain a conviction for the crime of speeding. See Brooker v. State, 206 Ga.App. 563, 565, 426 S.E.2d 39 (1992) (noting the presumption that a public officer has done his duty in all cases involving the traffic statutes). Given that the variance from the statutory speed limit of 30 mph to the non-statutory limit of 35 mph could only work in Frasard's favor, moreover, Frasard cannot show that he was prejudiced by the State's imposition of a higher, non-statutory speed limit in this case.

[7] (b) OCGA § 40–14–6(b) provides:

Each county, municipality, college, and university using speed detection devices shall erect signs on every highway which comprises a part of the state highway system at that point on the highway which intersects the corporate limits of the municipality, the county boundary, or the boundary of the college or university campus. Such signs shall be at least 24 by 30 inches in area and shall warn approaching motorists that speed detection devices are being employed. No such devices shall be used within 500 feet of any such warning sign erected pursuant to this subsection.

As this Court has repeatedly held, incomplete compliance with this statute does not mandate that evidence obtained by the speed detection device be excluded. Ferguson v. State, 263 Ga.App. 40, 41(3), 587 S.E.2d 195 (2003); Royston v. State, 166 Ga.App. 386, 304 S.E.2d 732 (1983); Ferguson v. State, 163 Ga.App. 171, 172(1), 292 S.E.2d 87 (1982).

The arresting officer testified that he had verified the existence and extent of a 35 mph speed limit zone at the county line by riding his motorcycle on both sides of that line and physically verifying the posted speed limits in the area. This testimony as to Frasard's speeding was admissible, and the conviction obtained on the basis of that testimony lawful. Id.

3. In four enumerations of error, Frasard argues that the State failed (a) to show compliance with OCGA § 40–14–7, which mandates that no stationary speed detection device shall be used if not visible to a driver “for a distance of at least 500 feet”; (b) to show compliance with applicable federal and state standards for laser devices as required by OCGA § 40–14–4; and (c) to produce a certified copy of the Department of Public Safety's list of approved laser devices including that used to detect his speed. We disagree.

(a) Frasard argues that the evidence was insufficient as to the State's compliance with OCGA § 40–14–7, which bars the use of any speed detection device “not visible for a distance of at least 500 feet” from the motorist. Although Frasard testified at trial that the arresting officer was close enough that Frasard could see him looking into his speed detection device as Frasard's vehicle came into view, the arresting officer testified that he was at a distance of between 844 and 950 feet from Frasard's vehicle when the device showed that Frasard was speeding. It was for the jury to resolve contradictions between this and any other evidence as to the distance at which the speed detection device was used.

(b) Under OCGA § 40–14–4, a State agency is authorized to use only speed detection devices only if “the agency possesses a license in compliance with Federal Communications Commission rules,” and if “each device, before being placed in service and annually after being placed in service, is certified for compliance by a technician possessing a certification as required by the Department of Public Safety.” When the arresting officer testified that the device he was using was certified by the Department of Public Safety, Frasard did not object. The State also introduced the officer's log showing his daily tests of the device. The officer testified that the County had received a permit from the State authorizing the use of speed detection devices on certain roads.

As an initial matter, this record shows that while Frasard did object to the relevancy of the officer's log, he did not object to the officer's testimony on the ground that the County had failed to show continued compliance with FCC rules, with the result that he has waived this issue on appeal. See Keller v. State, 271 Ga.App. 79, 82(5), 608 S.E.2d 697 (2004) (when defendant made only a general objection as to lack of foundation concerning results of speed control device, he had waived any argument as to the evidence on appeal). When a speed detection device is operated by a county officer, moreover, we presume that the permit issued by the Department of Public Safety complied with OCGA § 40–14–14 such that an actual FCC license does not need to be produced to show a county officer's compliance with the Georgia statute. Brooker, supra at 564, 426 S.E.2d 39.

Nothing in [our caselaw] suggests that compliance with the certification requirements of OCGA § 40–14–4 cannot be...