Prather v. The State, A09A2087.
| Decision Date | 04 October 2010 |
| Docket Number | No. A09A2087.,A09A2087. |
| Citation | 693 S.E.2d 546,303 Ga.App. 374 |
| Parties | PRATHERv.The STATE. |
| Court | Georgia Court of Appeals |
Steven E. Phillips, for appellant.
Paul L. Howard Jr., Dist. Atty., Stephany J. Luttrell, Asst. Dist. Atty., for appellee.
Following the denial of his plea in bar asserting double jeopardy, James Prather appeals and contends that the trial court erred by ruling (1) that the evidence in his first trial sufficed to support a verdict that Prather was guilty of two offenses predicated on reckless driving, and (2) that Prather could be retried during the pendency of Prather's appeal of plea in bar found to be nonfrivolous. For the reasons that follow, we affirm the denial of the plea in bar and conclude that Prather's second enumeration is moot.
In reviewing a trial court's ruling on a plea in bar, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented ... we review de novo the trial court's application of the law to the undisputed facts.” 1 The undisputed record shows that Prather was involved in a car collision that killed another driver when Prather's vehicle crossed a median and crashed into oncoming traffic. Based on the collision and death, Prather was indicted for committing vehicular homicide through a DUI less safe violation 2 (Count 1), vehicular homicide through a reckless driving violation 3 (Count 2), DUI less safe (Count 3), reckless driving (Count 4), and driving with a suspended license 4 (Count 5). Following a jury's guilty verdict on all five counts, Prather moved for a new trial challenging, in part, the sufficiency of the evidence as to Count 2 (vehicular homicide based on reckless driving) and Count 4 (reckless driving), and arguing that the trial court improperly charged the jury on Counts 1 through 4. In two separate orders, the trial court ultimately agreed and granted Prather a new trial as to the first four counts on the basis that the jury charges were improper. Those orders did not make explicit findings as to the sufficiency of the evidence on the counts predicated on reckless driving (Counts 2 and 4).
Prather appealed from those orders on the theory that the State failed to present sufficient evidence as to Counts 2 and 4, because it failed to prove that he intended to cross into oncoming traffic as alleged in the indictment. This Court dismissed that appeal on jurisdictional grounds.5 Facing a second trial, Prather filed a plea in bar asserting double jeopardy based on the State's alleged failure to present sufficient evidence in the first trial as to Counts 2 and 4.6 The trial court found the evidence sufficient, denied the plea, ruled that a second trial could be held even in the event that Prather appealed the denial of his plea in bar, and set a trial date. Prather filed this appeal and an emergency motion in this Court seeking to stay the second trial pending the outcome of the appeal. This Court granted the motion, the trial was stayed, and we now address Prather's appeal.
1. Prather contends that he cannot be retried on the counts predicated on reckless driving because the State failed to prove the offenses as alleged in the indictment. We disagree.
So viewed, the evidence shows that as Prather drove his vehicle through the rain 15 to 20 miles per hour over the speed limit on a highway, he was weaving in and out of his lane. A witness saw him “driving fast and swerving” and described it as “an accident waiting to happen.” Prather eventually crossed the median into oncoming traffic. He collided with a van, which was then hit by a tractor-trailer, and the occupant of the van was killed. Prather asked a bystander for a breath mint, and a doctor who soon treated Prather for his injuries smelled alcohol on his breath. Upon being treated at a hospital his blood alcohol level was 0.135.
With respect to the charges based on reckless driving, the indictment accused Prather of the following:
Prather argues that the State failed to prove the offense as indicted, i.e., that he drove recklessly by “leaving the roadway and driving into oncoming traffic.” However, there was testimony from an eyewitness who described Prather as “weaving,” “kind of not really staying in his lane, swerving ... I saw the vehicle go over into like a patchy grassy area off of the expressway back onto the expressway and then over the median into incoming traffic going in the opposite direction.” While Prather argued that he was hit from behind, causing him to crash and that there was no evidence that he specifically intended to drive off of the roadway or cross into oncoming traffic, the jury was authorized to disbelieve him.11 Further, “[i]n order to establish a [reckless driving] violation ..., the State needed only to present evidence showing that defendant drove his car in a manner exhibiting reckless disregard for the safety of persons or property,” 12 through facts as alleged in the indictment. The evidence showed that Prather, on the day alleged in the indictment, drove while intoxicated and weaved in and out of his lane, on and off the roadway, ultimately crashing into oncoming traffic and killing the victim. The allegations in the indictment were thus proven by this evidence. Therefore, the trial court did not err in ruling that the evidence sufficed to support the guilty verdict as to the indicted reckless driving offenses. 13
2. The trial court found Prather's plea in bar to be nonfrivolous but ruled that it could proceed with a new...
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