Wagner v. the State.

• Decision Date: 07 September 2011
• Docket Number: No. A11A0895.,A11A0895.
• Citation: 311 Ga.App. 589,716 S.E.2d 633,11 FCDR 2910
• Parties: WAGNERv.The STATE.
• Court: Georgia Court of Appeals

311 Ga.App. 589

716 S.E.2d 633

11 FCDR 2910

WAGNER

v.The STATE.

No. A11A0895.

Court of Appeals of Georgia.

Sept. 7, 2011.

Christopher Reginald Geel, Atlanta, Lawrence Jason Zimmerman, for appellant.Barry Edward Morgan, Solicitor–General, Christopher Scott Lanning, Assistant Solicitor–General, for appellee.BARNES, Presiding Judge.

A jury convicted James D. Wagner of driving under the influence of alcohol to the extent it was less safe for him to drive (“DUI–Less Safe”) and of child endangerment for driving with a child in the car while under the influence of alcohol (“DUI–Child Endangerment”). The trial court subsequently denied his motion for a new trial. On appeal, Wagner contends that the trial court committed reversible error by instructing the jury that it could infer, from his refusal to take a State-administered breath test, that the test would have shown the presence of alcohol “which impaired his driving.” While Wagner did not specifically object to the instruction at the conclusion of the jury charge, we conclude that the instruction constituted plain error. Therefore, we must reverse his convictions and remand for a new trial.

Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to the jury's verdict. Vadde v. State, 296 Ga.App. 405, 674 S.E.2d 323 (2009). So viewed, the evidence showed that on the evening of October 3, 2008, a customer was in her car waiting in the drive-through lane of a fast food restaurant in Cobb County. While waiting, she saw a four-year-old child run from the restaurant into the parking lot. The customer was concerned that the child might get struck by a vehicle. Another customer who saw the child running in the parking lot let out a “blood-curdling scream.” At that point, the child stopped just as a car was nearing him and fell backward. The customer in the drive-through lane was unsure whether the child had been hit by the car or simply fell down.

After the child fell backward, the customer observed Wagner exit from the restaurant, pick up the child, and put the child into his vehicle. The manager of the restaurant followed Wagner outside and tried to get him to stop so that he could make sure the child was okay. However, after placing the child into his vehicle, Wagner drove away.

After leaving the restaurant parking lot, the customer who had witnessed the incident began following Wagner's vehicle. While following the vehicle, the customer described Wagner's driving as “[e]rratic to the point where I think, he knew I was following him and he didn't want me there.” Wagner proceeded to a nearby park where he stopped his vehicle, and the customer called 911. Wagner then left the park area in his vehicle, and the customer continued to follow him.

The customer followed Wagner to another parking lot near a car wash, where Wagner parked his car. Responding to the 911 call, a police officer arrived on the scene shortly thereafter and approached Wagner, who at that point was standing at the rear of his vehicle. The officer noted that the tag number on the vehicle matched the tag number that had been given in the 911 call. The officer also observed that the child was still in Wagner's vehicle, and a second officer arrived on the scene and spoke with the child and with the customer who had followed Wagner to the parking lot.

The first responding officer then asked Wagner why he was parked there. Wagner said that he had been eating at the fast food restaurant but left and then stopped in this parking lot because he felt “threatened.” While speaking with Wagner, the officer noticed a strong odor of alcoholic beverage coming from his mouth. The officer further observed that Wagner's speech was “slow and labored,” that his eyes were “glossy and red,” and that he appeared “somewhat disoriented.” Wagner told the officer that he had consumed one alcoholic beverage. The officer requested that Wagner take an alco–sensor breath test, but he refused.

Wagner thereafter submitted to a series of field sobriety evaluations, but pointed out to the officer that he only had one contact lens in at the time. The officer conducted the horizontal gaze nystagmus test, and Wagner exhibited six out of six clues for possible impairment. On the walk and turn test, he exhibited three out of eight clues of possible impairment. In contrast, Wagner exhibited no clues of impairment on the one-legged stand test and accurately recited the alphabet from E to X as instructed by the officer. Wagner also exhibited no signs of vertical gaze nystagmus.

Believing that Wagner had been driving under the influence of alcohol and was a less-safe driver, the officer placed Wagner under arrest. After being taken into custody, Wagner refused to take a State-administered breath test upon hearing the implied consent warning.

Wagner was charged by accusation with DUI—Less Safe and DUI—Child Endangerment. At the ensuing jury trial, the restaurant customer who had followed Wagner and the first responding officer testified to the events as set out above. The State also introduced into evidence and played for the jury two audio recordings of 911 calls made about the restaurant incident and a video recording of the traffic stop.

1. Although not enumerated as error, we conclude that the evidence was sufficient for a rational jury to find Wagner guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See OCGA § 40–6–391(a)(1), ( l ).

2. Wagner contends that the trial court improperly instructed the jury about the inference that could be drawn from his refusal to submit to a State-administered breath test. The trial court instructed the jury:

I charge you that in any criminal trial, the refusal of the defendant to permit a chemical analysis to be made of his blood, breath, urine or other bodily substances at the time of his arrest shall be admissible as evidence against him. I further charge you that the refusal itself may be considered as positive evidence, creating an inference that the test would show the presence of alcohol or other prohibited substances which impair his driving; however, such an inference may be rebutted.

(Emphasis supplied.)

In Baird v. State, 260 Ga.App. 661, 662–664(1), 580 S.E.2d 650 (2003), we disapproved of this jury instruction. We concluded that the inclusion of the phrase “which impaired his driving” improperly authorized the jury to infer not only that the test would have shown the presence of alcohol in the defendant's body, but also that the alcohol impaired his driving. Id. at 663(1), 580 S.E.2d 650. “The jury instruction, therefore, invaded the province of the jury and shifted the burden of proof to the defendant, forcing him to present evidence to rebut the inference.” Duelmer v. State, 265 Ga.App. 342, 342–343, 593 S.E.2d 878 (2004).

The State does not dispute that the challenged jury instruction was erroneous but argues that Wagner waived any challenge to the charge by failing to specifically object after the trial court gave it.¹ See OCGA § 17–8–58(b). However, a substantial error in the jury charge affecting the burden of proof constitutes plain error and is not waived on appeal. See In the Interest of A.S., 293 Ga.App. 710, 713(2), 667 S.E.2d 701 (2008); Jones v. State, 252 Ga.App. 332, 334(2)(a), 556 S.E.2d 238 (2001). See OCGA §§ 17–8–58(b); 5–5–24(c). And, as noted above, the instruction disapproved in Baird and charged to the jury in this case substantially affected the State's burden of proof by shifting it to Wagner, requiring him to rebut the inference that he was an impaired driver because he refused to submit to the breath test. See Duelmer, 265 Ga.App. at 342–343, 593 S.E.2d 878. Consequently, we conclude that the giving of the challenged jury instruction constituted plain error and thus was not waived by Wagner's failure to raise a specific objection in the trial court.

The State also argues that the giving of the instruction did not rise to the level of plain error because other portions of the charge purportedly eliminated any reasonable likelihood that the jury believed that Wagner's refusal to take the test was sufficient to prove that he was impaired. In this regard, the State emphasizes that other portions of the jury charge generally informed the jury that the State carries the burden of proving every...