Graves v. State

• Decision Date: 10 July 1997
• Docket Number: No. A97A0432,A97A0432
• Citation: 227 Ga.App. 628,490 S.E.2d 111
• Parties: , 97 FCDR 2677 GRAVES v. The STATE.
• Court: Georgia Court of Appeals

Page 111

490 S.E.2d 111

227 Ga.App. 628, 97 FCDR 2677

GRAVES v. The STATE.

No. A97A0432.

Court of Appeals of Georgia.

July 10, 1997.

Reconsideration Denied July 28, 1997.

Certiorari Granted Mar. 10, 1998.

Patterson & Patterson, Jackie G. Patterson, LaGrange, Yasma M. Patterson, for appellant.

June D. Green, Solicitor, Steven E. Rosenberg, Assistant Solicitor, for appellee.

ELDRIDGE, Judge.

Pursuant to a bench trial in the City of Atlanta Traffic Court, Fulton County, Raymond Graves was found guilty of driving with a suspended license, no proof of insurance, and improper U-turn. His sole enumeration of error is that the State failed to prove beyond a reasonable doubt that venue was proper in the City of Atlanta, Fulton County, as opposed to the City of Atlanta, DeKalb County.

This issue was not raised either before or during trial. Further, absolutely nothing in the record supports the notion that a challenge to venue was forthcoming in appellant's motion for directed verdict so as to predicate an assumption, apparently made by the dissent, that appellant did not "voluntarily" waive such issue; even appellant does not contend that the trial court's abrupt ruling on his motion for directed verdict cut short a venue challenge. ¹ Moreover, appellant has not and does not herein contend that venue was improper in Fulton County. Instead, appellant's argument is that, while venue may very well have been proper in Fulton County, the State failed to prove it. Held:

Although appellant failed to preserve this issue by timely objection in the court below, this Court has, in the past, reached this issue through an analysis of the "sufficiency of the evidence" to support the verdict. While the propriety of such analysis as applied to a procedural evidentiary issue such as proof of venue may appear questionable, when a sufficiency analysis is employed, this Court examines the entire record in order to evaluate the sufficiency of the evidence to support the verdict. See Saldona v. State, 219 Ga.App. 762, 466 S.E.2d 655 (1996); Teasley v. State, 207 Ga.App. 719, 429 S.E.2d 127 (1993), overruled on other grounds, Strickland v. State, 223 Ga.App. 772, 775, 479 S.E.2d 125 (1996); Morris v. State, 205 Ga.App. 650, 423 S.E.2d 54 (1992); Hunsucker v. State, 160 Ga.App. 846, 847(2), 287 S.E.2d 689 (1982); Dukes v. State, 151 Ga.App. 312, 313, 259 S.E.2d 706 (1979); see also OCGA § 5-6-36(a).

The record in the case before us contains three Uniform Traffic Citations ("UTCs") which were sworn to by the arresting officer and signed by him under oath before a magistrate on the incident date, July 11, 1996. The UTC is an affidavit that may serve as the formal prosecuting instrument for a misdemeanor traffic offense before the trier of fact, and the UTC "alone would suffice to prosecute a traffic violation." Evans v. State, 168 Ga.App. 716, 717, 310 S.E.2d 3 (1983); McCann v. State, 158 Ga.App. 202, 279 S.E.2d 499 (1981). Although, for the sake of expediency, our legislature has provided that a UTC may serve the same function as an indictment or accusation, a UTC is not, as contended by the dissent, "like" either of these instruments of prosecution: an accusation or indictment is drawn by the solicitor or district attorney respectively, neither of whom is a witness to the incident in question so as to testify at trial regarding the facts thereof. See, e.g., Brown v. State, 82 Ga.App. 673, 676-677, 62 S.E.2d 732 (1950) (accusation founded upon affidavit of the prosecutor); Smith v. State, 138 Ga.App. 692, 227 S.E.2d 468 (1976) (traffic offense prosecuted upon the solicitor's accusation); cf. State v. Doyal, 184 Ga.App. 126, 361 S.E.2d 17 (1987); Evans, supra at 717, 310 S.E.2d 3. A UTC, on the other hand, contains the sworn affidavit of the witness arresting officer and does not become "transformed" into an accusation or indictment when used as a vehicle for prosecution; its contents remain the same. ²

On the face of the UTCs in the case sub judice, the State's witness, arresting officer Smail, "being duly sworn upon his oath, deposes and states that he has just and reasonable grounds to believe, and does believe," that appellant committed the offense as set forth in the UTC in the City of Atlanta, Fulton County. The UTCs were then filed with the clerk of court the day after the incident, July 12, 1996. See Ghai v. State, 219 Ga.App. 479, 465 S.E.2d 498 (1995).

On September 5, 1996, the appellant opted for a bench trial in the City of Atlanta Traffic Court. The trial court heard evidence from Officer Smail, who testified that the offenses occurred in the City of Atlanta. Further, the trial court had the UTCs before it as a part of the court's record; the UTCs established that the offenses occurred in Fulton County. Appellant made no objection to venue as being in Fulton County, and no conflicting evidence was presented at trial or is present in the record before us.

In a bench trial, certain evidentiary allowances are made that differ from a jury trial. For example, it is well settled that in a bench trial, the court has broader discretion in admitting evidence than in cases where a jury is involved. Davis v. State, 189 Ga.App. 412, 376 S.E.2d 421 (1988); Milner v. State, 163 Ga.App. 827, 296 S.E.2d 360 (1982). When the judge sits as the trier of fact, it is presumed that he will consider only legally admissible evidence. Bailey v. State, 219 Ga.App. 258, 261, 465 S.E.2d 284 (1995). Further, and most importantly in the case sub judice, a trial court may take judicial notice of its own records for evidentiary purposes in a case, either civil or criminal, that is pending before it. OCGA § 24-1-4; Petkas v. Grizzard, 252 Ga. 104, 312 S.E.2d 107 (1984). From the trial court's and the parties' references to the contents of the UTCs and the judge's signature on the backs thereof, it is apparent that such judicial notice was taken. In the Interest of G. G., 177 Ga.App. 639, 341 S.E.2d 13 (1986) (judicial notice need not be invoked or announced); see also Petkas, supra; Walker v. McLarty, 199 Ga.App. 460, 461, 405 S.E.2d 294 (1991). As such, evidence was before the trial court establishing venue in Fulton County, even if this evidence may be deemed "slight." Minter v. State, 258 Ga. 629(1), 373 S.E.2d 359 (1988); Aldridge v. State, 236 Ga. 773, 774, 225 S.E.2d 421 (1976).

With regard to judicial notice of the UTCs, the dissent argues that "the mere fact that it [UTC] is in the court's record does not mean the trial judge may use it as evidence at a bench trial." This position is not well taken in light of the holding of the Supreme Court in Petkas v. Grizzard, supra. Contrary to the assertions of the dissent, in Petkas v. Grizzard, the trial court did not simply take judicial notice that "a pleading had been filed "; in taking judicial notice of the prior record, the content of the former pleadings, as well as the dispositions thereof, were necessarily considered by the trial court for a determination of the rights of the parties pursuant to the renewal statute, OCGA § 9-2-61. This Court reversed the trial court, espousing a position not unlike that of the dissent's herein in which this Court held: "[T]he trial court may not take judicial notice of the record in another case in the same court, without its formal introduction in evidence. ... [T]he trial judge may not take judicial notice of the prior case." (Citations omitted; emphasis in original.) Grizzard v. Petkas, 167 Ga.App. 254, 256-257, 305 S.E.2d 861 (1983). The Supreme Court reversed this Court, finding "a trial court may take judicial notice of records in the same court." Petkas v. Grizzard, supra at 108, 312 S.E.2d 107. Petkas "recognizes that judicial notice relates to matters of fact, not law, that judicial notice is a substitute for conclusive evidence." Mumford v. Davis, 206 Ga.App. 148, 149, 424 S.E.2d 306 (1992). Even before Petkas, a trial court could substantively take judicial notice of the record in the immediate proceeding before it. State v. Brinson, 248 Ga. 380, 283 S.E.2d 463 (1981). Over the years, this principle has been applied repeatedly to cases, both criminal and civil, regarding the substance of the record before the trial court. ³ Because the UTCs were part of the record before the trial court in the case sub judice, judicial notice of the contents thereof was proper.

Further, the dissent expresses concern that, in taking judicial notice of the contents of a UTC, a "trial judge conducting a bench trial on a felony indictment need not hear any testimony; rather he may simply read the indictment to determine what crime the defendant has committed." With respect, the dissent's apprehension is simplistic. Taking judicial notice of the contents of a UTC in a bench trial will not be dispositive of all issues and will not enable the State to prosecute an accused without introducing the testimony of a police officer. This is so because a defendant's plea of "not guilty" asserts the presumption of innocence as to the charged offenses, thereby raising contradictory assertions and conflicts as to the elements of those crimes asserted in the UTC. This gives rise to the State's evidentiary burden and the necessity for sufficient proof thereon beyond a reasonable doubt. However, a "not guilty" plea as to the crimes raises no such conflicts and concerns with regard to the procedural issue of venue. That is why "slight evidence" has always been sufficient as to venue where no contradictory evidence or assertions are present. Again contrary to the position taken by the dissent, when taking judicial notice of a fact contained in the record, about which fact there is no controversy or contradiction, the trial court is not required to make "any judgment about the truth of the factual allegations contained in that pleading." Accordingly, in the instant case, the affidavit containing the sworn testimony of the arresting officer in the UTCs, without...