Jones v. State

• Decision Date: 08 September 2014
• Docket Number: No. A13A1940.,A13A1940.
• Court: Georgia Court of Appeals
• Parties: JONES v. The STATE.

326 Ga.App. 658
757 S.E.2d 261

JONES
v.
The STATE.

No. A13A1940.

Court of Appeals of Georgia.

March 28, 2014.
Certiorari Granted Sept. 8, 2014.

[757 S.E.2d 262]

Jeffrey Robert Filipovits, Atlanta, Rebecca Torres Kozycki, for Appellant.

Barry William Hixson, Asst. Sol.-Gen., Jessica K. Moss, Sol.-Gen., for Appellee.

PHIPPS, Chief Judge.

In January 2013, a jury found Michael Jones guilty of driving under the influence of alcohol with an unlawful blood alcohol concentration (“DUI per se”),¹ driving under the influence of alcohol to the extent it was less safe for him to drive (“DUI less safe”),² and speeding. For sentencing purposes, the trial court merged the DUI less safe count into the DUI per se count, and sentenced Jones for DUI per se and speeding. After his convictions were entered, Jones moved for a new trial, which the trial court denied.

On appeal, Jones contends that the trial court erred by admitting evidence of a prior (2005) conviction for driving under the influence of alcohol, pursuant to OCGA § 24–4–404(b), because the prior conviction evidence was not relevant to, or probative of, any issue at trial aside from his character. Jones further contends that even if the prior conviction evidence had some relevance and was admissible under OCGA § 24–4–404(b), it should have been excluded under OCGA § 24–4–403, because its unfair prejudicial effect

[757 S.E.2d 263]

substantially outweighed its probative value. Because evidence of the prior conviction was improperly admitted, we reverse the conviction for DUI per se, and vacate the guilty verdict on the DUI less safe count; because the evidence meets the standard of Jackson v. Virginia,³ the case may be retried on the DUI counts. Because evidence of the prior conviction would have had no impact on the speeding offense, we affirm the conviction for speeding.

The evidence at trial showed the following. At about 11:45 p.m., on January 21, 2011, Jones was stopped by a police officer for driving in excess of the posted speed limit. The officer noticed that Jones's eyes were red and watery, and that an odor of an alcoholic beverage was coming from inside the vehicle. Jones, the sole occupant of the vehicle, denied that he had been drinking. At the officer's request, Jones exited his vehicle; at that point, the officer identified the source of the odor of alcohol as Jones's breath. Still, Jones denied that he had been drinking. Jones showed clues of impairment on each of three field sobriety evaluations the officer administered, and Jones ultimately admitted that earlier that day he had drunk two beers at a bar. The officer formed the opinion that Jones was a less safe driver, and arrested him. Jones was read implied consent warnings, and he consented to state-administered chemical testing of his breath. Jones registered blood alcohol levels of 0.147 and 0.139, in sequential breath samples administered on an Intoxilyzer 5000.

In February 2011, Jones was charged by accusation with DUI per se, DUI less safe, and speeding. In June 2011, the state moved to introduce at trial, as a similar transaction, evidence of a 2005 conviction for DUI less safe, for the purposes of showing Jones's “bent of mind, course of conduct[,] identity, knowledge, lack of mistake, motive, and intent[,] ... [and] willingness ... to operate a motor vehicle after his ... ability to do so safely has been compromised by the ingestion of intoxicants.”

In December 2012, the state filed an amendment to its similar transaction motion, stating the purposes for which it sought to introduce the prior conviction evidence as “including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” A hearing on the state's motion was conducted at trial prior to opening statements. The trial court orally ruled that the state could introduce evidence of the prior conviction as it concerned the DUI less safe charge for the purpose of showing “[k]nowledge and intent,” that is, “the intent to drive knowing that he was less safe ... because he was before.” The trial court found that Jones's prior DUI conviction was

probative of the fact that he's aware of what [drinking alcohol] did to him the first time and this is what it did to him the second time. We're talking about less safe. We're not talking about limits.... [F]orget about the levels. We're talking about what the substance did to him, within his knowledge.... [H]e knows, better than anybody does, what alcohol does to him this time.

Therefore, at trial, the state adduced evidence that in March 2005, Jones drove a vehicle when he was under the influence of alcohol to the extent that it was less safe for him to do so, and with an unlawful blood alcohol concentration. On that prior occasion, Jones was stopped by a police officer for, inter alia, failing to maintain his lane of traffic and following too closely. The officer testified that he had smelled a strong odor of an alcoholic beverage coming from Jones and observed that Jones's eyes were bloodshot and glassy and that his speech was slurred. The officer testified that Jones admitted to him that he had drunk “a few” beers, later stating that he had drunk about four “adult beverages.” Jones showed clues of impairment on field sobriety tests. The officer formed the opinion that Jones was less safe to drive and arrested him for driving under the influence. Jones was read implied consent warnings, and consented to chemical testing of his breath. Jones registered blood alcohol levels of 0.195 and 0.199 in two sequential breath samples administered on an Intoxilyzer 5000.

[757 S.E.2d 264]

1. Jones contends that the trial court erred by admitting evidence of his prior DUI conviction to prove that he had the requisite intent and knowledge to violate OCGA § 40–6–391(a)(1) and OCGA § 40–6–391(a)(5), because the prior conviction evidence was not relevant to, or probative of, any issue at trial aside from his character.

Georgia's new Evidence Code became effective and pertinently applies to trials conducted after January 1, 2013.⁴ The new Code adopted, in large measure, the Federal Rules of Evidence,⁵ and its sections are comparable to corresponding federal rules.⁶ “Because of this similarity[,] it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” ⁷

OCGA § 24–4–404(b) pertinently provides:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....⁸

The 11th Circuit utilizes a three-part test for evidence of other crimes or acts to be admissible pursuant to Federal Rule of Evidence 404(b): (1) it must be relevant to an issue other than the defendant's character; (2) there must be sufficient proof to enable a jury to find by a preponderance of the evidence that the defendant committed the act(s) in question; and (3) the probative value of the evidence cannot be substantially outweighed by undue prejudice, and the evidence must satisfy Federal Rule of Evidence 403. ⁹

Before the new Code became effective, appropriate purposes for admitting similar transaction evidence under Georgia law included course of conduct and bent of mind.¹⁰ Even then, it was held that “[t]he ultimate issue in determining the admissibility of evidence of other crimes [was] not mere similarity but relevance to the issues in the trial of the case.” ¹¹

This appears to be the first appellate case under the new Evidence Code to address the admissibility of evidence of a prior DUI conviction in a DUI trial for the purposes of showing intent and knowledge of the accused. Before the new Evidence Code became effective, this court held that “bent of mind and course of conduct [were] proper purposes for the admission of similar transaction evidence in cases involving allegations of less safe DUI,” ¹² and that “evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.” ¹³ But the new Evidence Code does not

[757 S.E.2d 265]

explicitly list either bent of mind or course of conduct as permitted purposes to admit similar transactions evidence.¹⁴

A trial court's decision to admit similar transaction evidence is reviewed for a “clear abuse of discretion.” ¹⁵

(a) Intent. A violation of OCGA § 40–6–391(a)(1) (DUI less safe) is a crime, and thus must contain the elements, as set forth in OCGA § 16–2–1(a), required to constitute a crime in Georgia.¹⁶ Pursuant to OCGA § 16–2–1(a), “[a] ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” But,

[c]riminal intent does not always equate to mental fault, guilty knowledge, or purposeful violation of the law.... [U]nless the particular provision indicates otherwise, the traffic offenses defined in Chapter 6's Rules of the Road are “strict liability” offenses, meaning that they can be committed without a culpable mental state.... They do not require the specific intent or wrongful purpose that is an element of other crimes, but they do require the defendant to have voluntarily committed the act that the statute prohibits, which typically involves driving at a particular time and place ... or in a particular way.¹⁷

The general criminal intent required for strict liability offenses is “simply the intent to do the act which results in the...