Keef v. State

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY
• Citation: Keef v. State, 469 S.E.2d 318, 220 Ga.App. 134 (Ga. App. 1996)
• Decision Date: 09 February 1996
• Docket Number: No. A95A1879,A95A1879
• Parties: KEEF v. The STATE.

Page 318

469 S.E.2d 318

220 Ga.App. 134

KEEF v. The STATE.

No. A95A1879.

Court of Appeals of Georgia.

Feb. 9, 1996.

Certiorari Denied May 3, 1996.

McClellan & Pangborn, John F. McClellan, Jr., Rome, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Assistant District Attorney, Rome, for appellee.

McMURRAY, Presiding Judge.

Defendant was charged in an indictment with two counts of " SERIOUS INJURY BY VEHICLE," one count of "DRIVING UNDER THE INFLUENCE OF ALCOHOL AND DRUGS (O.C.G.A. 40-6-391)," namely amphetamine and methamphetamine, to the extent he was less safe to drive, and one count of "DRIVING ON THE WRONG SIDE OF THE ROAD (O.C.G.A. 40-6-40)." The evidence adduced at his jury trial showed that on the evening of November 11, 1993, defendant was traveling south on Highway 27 in Floyd County, Georgia. Defendant's "truck [was] going very fast and all of a sudden he just crossed the [center] line," into opposing traffic. He struck the car operated by Christa Hutchins, inflating her airbag and tearing "all of the [driver's side] doors off of the car." Christa Hutchins' car "spun around several times." "The airbag went off in [her] face and [she] had a lot of cuts and a black eye; bruises where the steering wheel was and bruises on [her] knee and hip." She suffered "a lot of soreness; back soreness, hip soreness." Janice Crawford also saw defendant's "vehicle crossing the center line coming toward [her]." Defendant "struck the car in front of [Janice Crawford]. At that time, [she] knew it was going to hit [her] so [she] had applied [her] brakes." "There was no place to go.... Traffic was on both sides." Janice Crawford "was knocked unconscious." "They had to use the jaws of life stretching and cutting the car to free [Janice Crawford's] legs. [She] couldn't get [her] legs out." Janice Crawford's forehead was cut "under the hair[line]. They had to shave [her] hair to stitch it up." This injury left a scar "[a] couple inches [long]." Janice Crawford's right foot was broken, and her left leg required surgery. She now has "a rod the length of [her] femur and ... a plate on the bottom part of [her] foot." She also sustained "a broken pelvis bone, [and] a broken collar bone." Laura Carpenter, a passenger in Janice Crawford's vehicle, sustained a dislocated right hip in the collision. She screamed when the emergency room physician "popped [her] hip back in place." Laura Carpenter's leg was put in traction and she stayed in the hospital for about a week. "[She] had to stay out of school for about three to four weeks after that." Her "right hip was chipped where they popped it back in place."

Defendant, who was in the driver's seat of his vehicle and "was in pretty bad shape," exuded "a pretty strong smell ..." of alcohol. Bobby Pearson, then a Captain with the Rome City Police Department assigned to the traffic division and DUI Task Force, found defendant "could talk but he wasn't really coherent." Captain Pearson also detected a strong odor of alcohol on defendant's breath, "strong enough for [him] to notice immediately that it was alcohol or something associated with alcoholic beverages." Officer Jim Ferguson "went to Floyd Medical Center to take blood and urine samples from all of the drivers for a drug and alcohol test." Defendant's urine sample, taken at 6:10 p.m., tested positive for methamphetamine. Defendant's blood was drawn twice. From a sample "COLLECTED 11/11/93 [at] 18:00," the presence of alcohol was measured at "104." According to Dr. Paul Brock, this number "represents the concentration of alcohol that's found in his blood at a certain percentage. At Floyd Medical Center that would be equivalent to a 10." A second sample, drawn at 6:40 p.m., was tested by Robert Brown of the Georgia Bureau of Investigation, Division of Forensic Sciences. This second blood sample "was positive for ethyl alcohol 0.06 grams percent." The difference was explained by Dr. Robert Holcolm as a result of the passage of time and the intravenous infusion into defendant of four liters of fluids between 6:00 and 6:40.

Defendant gave a non-custodial statement to Officer Janet Moon of the Rome City Police Department. Defendant explained to Officer Moon that, in order to overcome congestion from a bad cough, he "had half a bottle of cough syrup left and he filled the other half up with Canadian Club and that's what he drank." "He felt the cause of the accident was because he went to sleep [at the wheel]." Robert Brown calculated that, if a 195-pound male consumed four ounces of 90 proof whiskey at 3:00 p.m., then at 6:00 p.m. his blood alcohol level would be approximately 0.01 grams percent, because the average person metabolizes alcohol at approximately "0.015 grams percent per hour." Donald Dicks, a forensic toxicologist with the Georgia Bureau of Investigation, Division of Forensic Sciences, tested defendant's urine sample. "The urine test for the amphetamine type drugs indicated a positive." Donald Dicks then extracted the drugs from the urine sample for testing under the "gas chromatography mass spectrometry." Along with ephedrine and pseudoephedrine, he "also found amphetamine and methamphetamine." Methamphetamine is "primarily illegal. There is a prescription used for attention deficit disorder." In the opinion of Donald Dicks, the stimulative effect of methamphetamine would not counteract the depressive effect of alcohol; rather "[o]ne drug would enhance the other." The person "would still be affected by the alcohol but the ... methamphetamine would make him hyper[active]."

The jury found him guilty on each count. Defendant's direct appeal to the Supreme Court of Georgia was transferred to the Court of Appeals of Georgia. Held:

1. Defendant first contends the trial court erred in denying his motion for directed verdict as to the two counts of causing serious injury by vehicle. He argues first that the State failed to make out the statutory element of serious disfigurement. Secondly, defendant contends the State failed to prove the injuries to Janice Crawford and Laura Carpenter resulted from his driving under the influence of alcohol or drugs, arguing the State failed to prove a violation of OCGA § 40-6-391.

(a) "Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof, or by causing organic brain damage which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 shall be guilty of the crime of serious injury by vehicle." OCGA § 40-6-394. " 'Black's Law Dictionary defines "disfigurement" as "that which impairs or injures ... the appearance of a person ...," and defines "serious" as "grave, (or) great." ' Baker v. State, 246 Ga. 317, 318(2), 271 S.E.2d 360 (1980)." In the Interest of H.S., 199 Ga.App. 481, 405 S.E.2d 323. In the case sub judice, the issue whether Janice Crawford's two-inch "scar constituted serious disfigurement was a jury question. Barfield v. State, 170 Ga.App. 796, 318 S.E.2d 219 (1984); Thompson v. State, 156 Ga.App. 1, 273 S.E.2d 894 (1980), cert. denied." Grace v. State, 210 Ga.App. 718, 719(2), 437 S.E.2d 485, interpreting identical language under the aggravated battery statute, OCGA § 16-5-24(a). As to Laura Carpenter, she was deprived of her ability to walk for the several weeks during which period her dislocated hip was rendered useless. "To constitute the crime of [serious injury by vehicle], there is no requirement that, in addition to being 'serious,' the [member of the victim be permanently rendered useless]. The evidence in this case demonstrates, at the very least, 'serious temporary [uselessness of Laura Carpenter's hip and consequently, her legs].' (Emphasis [in original.] ) Baker v. State, 245 Ga. 657, 667(6), 266 S.E.2d 477 (1980)." In the Interest of H.S., 199 Ga.App. 481, supra, 405 S.E.2d 323.

(b) "OCGA § 40-6-391(a)(3) provides, 'A person shall not drive or be in actual physical control of any moving vehicle while: ... Under the combined influence of alcohol and any drug to the extent that it is less safe for the person to drive.' Howell v. State, 179 Ga.App. 632, 634(1), 347 S.E.2d 358 (1986).... The statute does not require a certain amount [of controlled substance] to be shown." Kerr v. State, 205 Ga.App. 624, 627(3), 423 S.E.2d 276. In the case sub judice, the physical evidence is undisputed that defendant crossed the double yellow line and crashed into two cars coming from the opposite direction. The testimony of Robert Brown of the Georgia Bureau of Investigation as to the possible effects of the combination of methamphetamine and alcohol, coupled with defendant's own surmise that he fell asleep at the wheel, is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 to authorize the jury's conclusion that defendant is guilty, beyond a reasonable doubt, of causing serious injury by vehicle due to his violation of OCGA § 40-6-391(a)(3), as alleged. Consequently, the trial court correctly denied defendant's motion for directed verdict on each of the enumerated grounds.

2. The transfer of this appeal from the Supreme Court of Georgia to the Court of Appeals of Georgia constitutes a final determination that no constitutional challenge was in fact properly raised or else, if so raised, that it was not meritorious. Ryals v. State, 215 Ga.App. 51, 52(1), 449 S.E.2d 865.

3. In his third enumeration, defendant contends the trial court erred "in permitting the State to inquire into and cross-examine [defendant] concerning a charge of driving under the influence in Alabama." He argues that he never opened the door to such cross-examination; that the State failed to lay a proper foundation; and that the State should have been required to produce a certified copy of the Alabama conviction. We agree.

A lengthy...