Russell v. State
Decision Date | 01 April 1985 |
Docket Number | No. 69834,69834 |
Citation | 330 S.E.2d 175,174 Ga.App. 436 |
Parties | RUSSELL v. The STATE. |
Court | Georgia Court of Appeals |
Roger E. Bradley, Blue Ridge, William L. Reilly, for appellant.
George W. Weaver, Dist. Atty., Brenda S. Thurman, Asst. Dist. Atty., for appellee.
After a trial by jury, appellant was convicted of violating OCGA § 40-6-391(a)(1) and of operating a motor vehicle after being declared a habitual violator under OCGA § 40-5-58.
1. Appellant asserts a fatal variance between the allegations of the indictment and the proof adduced at trial. Count II of the indictment charged appellant with D.U.I. alleging that on February 25, 1982 while under the influence of alcohol he drove and was in actual physical control of a moving vehicle upon the public street and highway known as Georgia Highway # 76, one mile east of Blue Ridge, Fannin County, Georgia. The State presented evidence to show that at approximately 11:30 p.m. on February 25, 1982 two Fannin County Deputy Sheriffs were patrolling on Highway 76. They saw a car in the parking lot of Harmony Church adjacent to and located 20-25 feet from Highway 76. The parking lot of the church could only have been entered from Highway 76. Upon their arrival, appellant was in the driver's seat of the car with the motor running, the back-up lights on, and the car moving slightly in reverse. The owner of the vehicle was asleep in the passenger's seat. The officers testified that appellant "had a strong odor of alcohol about him" and was "real staggery" and "wobbly." An intoximeter test revealed appellant's blood alcohol content to be .18 percent. Appellant testified on cross-examination that he had consumed three or four drinks of vodka mixed with orange juice over a four to five-hour period.
We find no fatal variance between the evidence and the indictment. Felchlin v. State, 159 Ga.App. 120(1), 282 S.E.2d 743 (1981). See also Lewis v. State, 149 Ga.App. 181(3), 254 S.E.2d 142 (1979).
2. In related enumerations of error appellant challenges the sufficiency of the evidence to support his conviction as well as the trial court's denial of his motion for directed verdict of acquittal. Appellant specifically contends that the State failed to show that he operated a motor vehicle upon Highway 76. We disagree. Appellant produced evidence to the effect that he and Mull were driven from Highway 76 into the parking lot by James Gary Parr who parked the car there, left the motor running with appellant and Mull inside, and drove away in his truck shortly before the officers arrived. The jury, however, apparently did not believe appellant's version. See Carr v. State, 169 Ga.App. 679(1), 314 S.E.2d 694 (1984). "The weight and credit of the evidence and the credibility of the witnesses was for the jury to determine." Roberts v. State, 172 Ga.App. 139, 140, 322 S.E.2d 342 (1984). ...
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