Queen v. State

• Decision Date: 04 November 1988
• Docket Number: No. 77178,77178
• Citation: 189 Ga.App. 161,375 S.E.2d 287
• Parties: QUEEN v. The STATE.
• Court: Georgia Court of Appeals

Page 287

375 S.E.2d 287

189 Ga.App. 161

QUEEN v. The STATE.

No. 77178.

Court of Appeals of Georgia.

Nov. 4, 1988.

Harrison & Harrison, G. Hughel Harrison, Lawrenceville, for appellant.

Gerald N. Blaney, Jr., Sol., for appellee.

BIRDSONG, Chief Judge.

Appellant, Kerry Edward Queen, appeals his conviction of driving and operating a motor vehicle with driver's license in suspension, operating a motor vehicle without insurance, and operating a motor vehicle with a defective headlight.

At trial, the arresting officer who was the sole State's witness testified that he stopped appellant because the latter was driving with his right headlight out. The appellant asked why he was stopped and was shown the defective headlight. Appellant was asked for his driver's license and for proof of insurance, and he could not produce it. Appellant claimed he had left his license at home. However, when asked to provide his name and birthdate for a computer check, appellant replied, "[d]on't bother, they're suspended. I don't have any insurance." Radio confirmation regarding the status of appellant's license was obtained. At some point during the traffic stop, the appellant also informed the arresting officer that the motor vehicle "was his." The State also introduced in evidence a properly excised and authenticated copy of appellant's driving record, maintained by the Department of Public Safety, containing an entry showing appellant's driver's license was "SUSPENDED--INSURANCE CANCELLATION (1st)." Held:

1. Appellant asserts that the trial court erred in denying his motion for directed verdict of acquittal as to each of the above counts. The evidence, when viewed in the light most favorable to the prosecution, is not such as to demand a verdict of acquittal; and, our review of the transcript " 'reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged.' " Jones v. State, 185 Ga.App. 595(1), 365 S.E.2d 153, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

(a) Appellant's motion for directed verdict on the charge of operating a motor vehicle without insurance was predicated on a claim that the State has failed to meet its burden of proof as to this offense. We disagree. The appellant's failure to produce his insurance card upon request, the official record maintained by the Department of Public Safety containing factual entries of license suspension and insurance cancellation, and appellant's admissions that he was the owner of the vehicle and that he did not have any insurance, constitute "ample evidence" of record within the standard and meaning of Jackson v. Virginia, supra. Compare Barrett v. State, 173 Ga.App. 452, 326 S.E.2d 816.

(b) Appellant's motion for directed verdict on the charge of driving with a suspended driver's license was predicated on a claim that "the State has failed to prove the requisite notice of cancellation, as well as notice upon this Defendant." We find Barrett v. State, supra, to be controlling. The triers of fact could conclude from appellant's admission that his license had been suspended, and that the appellant had received due notice of this fact. OCGA § 24-1-1(4). The cases of Farmer v. State, 185 Ga.App. 512, 364 S.E.2d 639; Sumner v. State, 184 Ga.App. 374, 361 S.E.2d 536; and Williams v. State, 181 Ga.App. 49, 351 S.E.2d 207 are factually distinguishable from this case.

(c) Appellant's motion for directed verdict on the charge of operating a motor vehicle with a defective headlight was predicated on a claim that the officer stated such offenses normally are not prosecuted (selective prosecution) and "that this was just probable cause." Upon appeal, appellant asserts that the State failed to "carry the burden of proof as to [the headlight offense] in that ... an absolute duty was placed upon the Defendant that would result in a violation of the law upon an equipment failure."

Appellant's assertion at trial of selective prosecution has been abandoned on appeal. Clark v. State, 180 Ga.App. 280(2), 348 S.E.2d 916. Moreover, this assertion is without merit. Sabel v. State, 250 Ga. 640(4), 300 S.E.2d 663.

Appellant's assertion that the State has failed to carry its burden of proof, as an absolute duty not to drive with a defective headlight erroneously was placed upon appellant, equally is without merit. First, appellant has not enumerated as error or expressly argued in his brief that any particular instructional error occurred regarding this offense. In attempting to construe the basis of appellant's enumeration of error in light of the matters above discussed, we find that his assertion is too non-specific and too general to assist this court in ascertaining the precise scope and nature of the error enumerated. Kelly v. State, 182 Ga.App. 7(3), 354 S.E.2d 647. However, based on our review of the record, we assume appellant is asserting that a directed verdict should have been granted because the State failed to establish he had knowledge of the defective headlight and a mens rea to violate the statute. We also assume that this is what appellant meant when he requested a directed verdict at trial on the basis of "probable cause."

A "crime" within the meaning of the Criminal Code of Georgia has been generally defined as being "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." OCGA § 16-2-1. Nevertheless, it has long been recognized that it is unlawful " 'to drive an automobile on a public highway at night with but one headlight burning' " and it is not error to so instruct a jury. Loudermilk v. State, 41 Ga.App. 286(1), 152 S.E. 593. The primary purpose of the statutes promulgated in Title 40 OCGA Ch. 8, Equipment & Inspection of Motor Vehicles, is to "promote safety" on the roadways of this state. See e.g. OCGA § 40-8-2; Black v. State, 34 Ga.App. 449, 451-452, 130 S.E. 591. Under our State Constitution, it is the "paramount duty of government" to provide for the protection of persons and property within its sovereign borders, Ga. Const. Art. I, Sec. I, Par. II, and...