Savage v. State
| Decision Date | 02 November 2001 |
| Docket Number | No. A01A0853.,A01A0853. |
| Citation | 556 S.E.2d 176,252 Ga. App. 251 |
| Parties | SAVAGE, v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Herbert Shafer, Atlanta, for appellant.
Joseph J. Drolet, Solicitor-General, Julie A. Kert, Assistant Solicitor-General, for appellee. BLACKBURN, Chief Judge.
Following a jury trial, Mark Savage appeals his convictions of driving under the influence of drugs to the extent it was less safe to drive and driving with a controlled substance in his blood, in violation of OCGA § 40-6-391(a)(2) and (6), arguing that the trial court erred by: (1) failing to direct a verdict in his favor on both DUI counts; (2) refusing to charge the jury on the defense of accident; (3) refusing to instruct the jury that the State must prove that he had actual physical control of his vehicle beyond a reasonable doubt; (4) failing to charge the jury on the elements of DUI, thereby improperly shifting the burden of proof to Savage; (5) failing to charge the jury on Savage's theory of defense; (6) admitting evidence of Savage's prior conviction for DUI; and (7) denying Savage's pre-trial motion to suppress the evidence obtained from a search of his car and the results of a chemical test of his blood. For the following reasons, we affirm.
"On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict." Cox v. State.1 So viewed, the evidence shows that, at approximately 4:30 p.m. on December 21, 1999, Thomas Jones observed Savage in the parking lot of Manuel's Tavern. Jones, who was entering the tavern, noticed Savage talking with someone in a car and acting "loud and boisterous." Savage was not wearing a shirt or shoes, which seemed odd to Jones, because it was a cold and rainy December day.
At approximately 6:30 p.m., Jones left the tavern and noticed Savage attempting to break into a car in the tavern parking lot.2 Jones saw Savage get into the car and witnessed the car roll approximately 15 feet and strike a parked van. Jones did not see anyone else in the car and did not hear the engine running. According to Jones, Savage did not close the car door. Jones reported what he had witnessed to police officers who were in the tavern.
Officer Clark Combs of the Atlanta Police Department was called to the scene. When he arrived, at approximately 7:30 p.m., Officer Combs conferred with the other two officers in the parking lot and noticed that the car (which belonged to Savage) and the van were slightly damaged from the collision. Officer Combs spoke with Jones and then approached Savage. Savage was acting paranoid and irrational; he did not know where he was, could not respond to questions, and wanted to leave the scene. Officer Combs thought that Savage had taken drugs and called an ambulance because he was concerned for Savage's safety.
When paramedics arrived, Savage was strapped to a gurney because of his combative behavior. Savage was arrested and taken to Grady Memorial Hospital, where Officer Combs read him his Miranda and implied consent rights. Savage submitted to a blood test which came back positive for cocaine metabolites. The State's forensic scientist opined that Savage had ingested the cocaine six to twelve hours prior to the blood being drawn.
A search of Savage's car produced a bottle of "Blue Nitro." Testimony at trial established that Blue Nitro was an over-the-counter health and fitness product that converts into gamma-hydroxybutyric or GHB (commonly referred to as the "date rape drug") when ingested. GHB is a central nervous system depressant and a very powerful intoxicant. Savage admitted to consuming "one small cap full" of Blue Nitro soon after arriving at the tavern that evening because he "heard it would make you hungry." Savage also admitted to taking a decongestant and Nyquil that day.
1. Savage argues that the trial court erred in denying his motion for directed verdict of acquittal on both DUI counts because the State failed to offer any evidence that he drove or was in actual physical control of his vehicle, a prerequisite to establish a violation under OCGA § 40-6-391(a)(2) and (6).
OCGA § 40-6-391(a) provides in pertinent part:
A person shall not drive or be in actual physical control of any moving vehicle while ... (2) Under the influence of any drug to the extent that it is less safe for the person to drive ... ( 6) ... there is any amount of marijuana or a controlled substance, as defined in Code Section 16-13-21, present in the person's blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person's breath or blood.
OCGA § 40-6-391(a)(2), (6).
Specifically, Savage argues that the jury was not authorized to find that he drove or was in control of the car because he did not have the keys and the motor was not running. "A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or `not guilty.'" (Punctuation omitted; emphasis in original.) Duckworth v. State.3
We first address the question of what constitutes driving or being in actual physical control of a moving vehicle while under the influence, under OCGA § 40-6-391(a). See Deering v. State.4 In Harris v. State,5 overruled on other grounds, Luke v. State,6 this court found an intoxicated defendant to be in actual physical control of his disabled vehicle when, after he was pushed into the street by another car, he steered his vehicle a short distance, even though his vehicle was unable to move under its own power. See also Luke, supra. It is not necessary to show that the defendant actually steered the vehicle to authorize a conviction. Accordingly, in Greene v. State,7 we found the defendant to be in actual physical control of a moving vehicle when, passed out at the wheel of his truck (which was idling and in reverse gear), the defendant was startled into consciousness by an officer, causing the truck to roll backward several inches. We held: "It was Greene's own failure to maintain control of a vehicle that was running and in gear that caused it to move in the officer's presence, and not a force totally beyond his control." Id., at 665-666, 448 S.E.2d 758. It is not necessary that the engine be running in order to constitute a violation of OCGA § 40-6-391(a). See Harris, supra; Luke, supra.
Here, the jury found that Savage was in actual physical control of his car in which the engine was not running. Savage admitted that no one else was in the car, that he caused the car to move, and that he was steering it. Savage could not recall why the car moved, but speculated that he knocked the car out of gear. Savage voluntarily placed himself behind the wheel of his car by breaking into it with a coat hanger and then caused it to roll downhill in the parking lot and collide with a van while he was under the influence of drugs.8 The car moved as a direct result of Savage's actions in releasing the brake, causing the vehicle to shift from "park," or otherwise effecting the movement of the parked vehicle. Savage's argument that he was unable to steer the car because he had no keys is without merit. Ultimately, it was for the jury to decide whether Savage was in actual physical control of the car. See Virgil v. State.9 The trial court did not err by refusing to direct a verdict in favor of Savage on this issue.
2. Savage contends that the trial court erred in refusing to give his request to charge based on OCGA § 16-2-2, that one is not guilty of a crime if the act is committed by misfortune or accident. We disagree.
OCGA § 16-2-2 provides: "[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears [that] there was no criminal scheme or undertaking, intention, or criminal negligence." The defense of accident is an affirmative defense. Griffin v. State.10 "An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it." (Punctuation omitted.) Kelley v. State.11 Accordingly, if a defendant does not admit to committing any act which constitutes the offense charged, he is not entitled to a charge on the defense of accident. Id.; Virgil, supra at 98, 488 S.E.2d 694.
Here, Savage does not cite to any case law to support his argument. He cites to OCGA § 16-2-2. Savage merely asserts that he is innocent of the offenses charged. He does not, for example, assert that while he committed the acts which constitute the crimes, such commission was by misfortune or accident. Virgil, supra at 98, 488 S.E.2d 694. See Gann v. State,12 overruled on other grounds, Brown v. State.13 Rather, Savage relies exclusively on his argument that the State failed to prove an essential element of the DUI offenses—that he drove or was in actual physical control of his car. See Virgil, supra at 98, 488 S.E.2d 694. It was Savage's burden to produce evidence to support the accident defense; he did not. See Cheesman v. State.14 He therefore did not establish the evidentiary foundation necessary to authorize a charge on the defense of accident. See Gann, supra at 85, 378 S.E.2d 369; Kelley, supra at 179(1), 509 S.E.2d 110. The trial court did not err in refusing to give an instruction on the defense of accident under the facts of this case.
3. Savage contends that the trial court erred in refusing to instruct the jury that the State must prove beyond a reasonable doubt that Savage had actual physical control of the vehicle. Savage did not request this charge in writing in the trial court. It is not generally reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party where the trial court otherwise gives all necessary charges. See Holt v. State.15 He...
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