Sapp v. State

• Decision Date: 15 October 1987
• Docket Number: No. 74382,74382
• Citation: 362 S.E.2d 406,184 Ga.App. 527
• Parties: SAPP v. The STATE.
• Court: Georgia Court of Appeals

Page 406

362 S.E.2d 406

184 Ga.App. 527

SAPP v. The STATE.

No. 74382.

Court of Appeals of Georgia.

Oct. 15, 1987.

Alan P. Layne, Bruce V. Durden, Lyons, for appellant.

Richard A. Malone, Dist. Atty., for appellee.

CARLEY, Judge.

Appellant was tried before a jury on an accusation which charged him with a violation of OCGA § 40-6-391(a)(4), the per se offense of operating a moving vehicle while having 0.12 percent or more by weight of alcohol in his blood. The jury returned a verdict of guilty. Appellant's motion for new trial was denied and he appeals from the judgment of conviction and sentence entered on the jury verdict.

1. The general grounds are enumerated as error. The State produced evidence that a chemical analysis of appellant's breath had been conducted pursuant to OCGA § 40-6-392(a). The results of that analysis were introduced into evidence and showed that appellant had 0.13 percent of weight of alcohol in his blood. "If there was ... 0.12 percent or more of weight of alcohol in the person's blood, the person shall be in violation of paragraph (4) of subsection (a) of Code Section 40-6-391." OCGA § 40-6-392(b)(4). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. Appellant enumerates as error the admission of evidence of his intoxicated state at the time of his arrest, such as the smell of alcohol and his speech patterns, which did not show that the weight of alcohol in his blood was 0.12 percent or more. The contention is that such evidence showed a violation of subsection (a)(1) of OCGA § 40-6-391, a wholly different manner of committing the crime of driving with impaired ability than that which was alleged in the accusation. Appellant also enumerates as error the denial of his motion for continuance, which motion had been based upon the asserted "surprise" occasioned by the trial court's admission of such evidence.

OCGA § 40-6-391(a) establishes one crime of driving with impaired ability which may be committed in four alternative ways. Hogan v. State, 178 Ga.App. 534, 343 S.E.2d 770 (1986). Appellant was tried on an accusation which charged him with violating only subsection (a)(4) of OCGA § 40-6-391. Accordingly, the State could not prove that appellant had violated OCGA § 40-6-391(a) other than by driving while having 0.12 percent or more by weight of alcohol in his blood. " ' "To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance.... [Cits.]" [Cit.]' [Cits.]" Cantrell v. State, 162 Ga.App. 42, 43, 290 S.E.2d 140 (1982). "[W]henever exigencies of proof exist as to whether an offense was committed in one of two methods proscribed by a statute, the prosecution may charge the accused in separate counts of a single indictment and let the jury select which method the evidence supports. [Cits.]" Walker v. State, 146 Ga.App. 237, 243(1), 246 S.E.2d 206 (1978).

Accordingly, circumstantial evidence of appellant's intoxication at the time of his arrest would not be admissible in this case as proof that he had violated subsection (a)(1) of OCGA § 40-6-391. Such evidence was, however, admissible as evidence of the circumstances surrounding appellant's arrest for having violated subsection (a)(4) of OCGA § 40-6-391. "[W]here evidence is relevant for the purpose of showing the circumstances of the arrest, it will not be excluded because it incidentally shows the commission of another crime. It follows that admission of evidence as to the conduct of appellant ... at the time [he was] arrested was not error." Newman v. State, 239 Ga. 329, 330, 236 S.E.2d 673 (1977). It necessarily follows that the trial court did not err in denying appellant's motion for a continuance, predicated upon the alleged "surprise" that such evidence would be admissible at his trial.

3. Appellant enumerates as error the trial court's giving of jury charges on OCGA § 40-6-391(a)(1) and on the rebuttable presumptions of OCGA § 40-6-392(b).

Jury charges on OCGA §§ 40-6-391(a)(1) and 40-6-392(b) were irrelevant and unauthorized in this case. Appellant was only charged with violating OCGA § 40-6-391(a)(4). Accordingly, "the [S]tate's case did not involve or invoke any of the presumptions available under OCGA § 40-6-392. [Cit.]" Stewart v. State, 176 Ga.App. 148, 149, 335 S.E.2d 603 (1985). Had the trial court further instructed the jury that OCGA § 40-6-391(a)(1) and the presumptions of OCGA § 40-6-391(b) constituted a viable alternative basis upon which to return a guilty verdict, reversible error would have been committed. See generally Walker v. State, supra. However, the trial court did not so charge. Instead, the jury was instructed that if it found beyond a reasonable doubt that appellant had driven "a motor vehicle ... while under the influence of alcohol and that his breath test indicated that his blood contained .13 percent of alcohol ... [it] would be authorized to find [him] guilty...." (Emphasis supplied.) Thus, the trial court, in effect, charged the jury that a guilty verdict required a finding that appellant had violated both subsections (a)(1) and (a)(4) of OCGA § 40-6-391. While this was erroneous, it was error which could only have been beneficial to appellant. A guilty verdict required only a finding that appellant had violated OCGA § 40-6-391(a)(4). Accordingly, the trial court's charge, although erroneous, is not a ground for granting appellant a new trial.

4. Appellant enumerates as error the admission into evidence of the results of his breath test showing 0.13 percent by weight of alcohol in his blood. Appellant urges "that the admissibility of chemical test results is dependent upon the State's compliance with the rules and regulations promulgated by the Department of Public Safety" (Rielli v. State, 174 Ga.App. 220, 222(3), 330 S.E.2d 104 (1985)), and that, the State having failed to prove compliance with those rules and regulations regarding calibration of the instrument used to conduct the test of his breath, the test results were inadmissible.

The only administrative rule and regulation regarding calibration of the instrument used to conduct breath tests is Rule 570-9-.06(8), which provides: "The Director, State Crime Laboratory: will cause each instrument used in the administration of breath tests to be checked periodically for calibration and operation and a record of the results of all such checks to be maintained...." "There is a presumption of law that a public officer has done his duty, and his official duties will be presumed to have been done rightly until the contrary is shown. [Cit.]" White Plains Carpet v. U.S. Fidelity, etc., Co., 130 Ga.App. 158, 159, 202 S.E.2d 558 (1973). Accordingly, there is a presumption in this and in all other cases arising under OCGA § 40-6-391 that the Director of the State Crime Laboratory has caused the instrument used to administer the breath test to be checked periodically for calibration. However, in this case, the State did not merely rely upon the presumption. The State produced evidence that the machine used to test appellant's breath had been calibrated "regularly" and "quite frequently." Accordingly, the contentions that the State did not show that the machine had been calibrated according to the applicable administrative rules and that the trial court erred in admitting the test results are without merit.

5. At the outset of his trial, appellant objected that the State was being represented by the District Attorney for the Middle Judicial Circuit rather than the Solicitor of the State Court of Candler County. The trial court overruled this objection on the basis that it had appointed the District Attorney to serve as solicitor pro tempore. Appellant enumerates this ruling as error.

Section 5(b) of Ga.L.1985, pp. 4783, 4787 provides, in relevant part: "In the absence or disqualification of the solicitor of [the State] [C]ourt [of Candler County], the judge thereof shall appoint a solicitor pro tempore, who may be an assistant district attorney of the Middle Judicial Circuit ... or who may be a duly qualified and practicing attorney in the State of Georgia...." There is no requirement that the trial court's appointment of a solicitor pro tempore be made in writing. Compare Cheely v. State of Ga., 251 Ga. 685(1), 309 S.E.2d 128 (1983). However, even assuming that a written appointment were necessary, its absence would not require the reversal of appellant's conviction. " 'When the appointment is made (the appointee) is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment.' [Cits.]" Mach v. State, 109 Ga.App. 154, 156(1a), 135 S.E.2d 467 (1964).

6. Appellant filed a timely pre-trial written motion wherein he sought to suppress evidence of his intoxication and to preclude the State from offering testimony in that regard. Included in appellant's motion were numerous grounds, at least one of which was assertible by way of a motion to suppress, but most of which were assertible only by way of a motion in limine. See State v. Johnston, 249 Ga. 413, 414(2, 3), 291 S.E.2d 543 (1982). The trial court refused to hold a pre-trial hearing to determine the admissibility of the evidence as against any of the grounds raised in...