Watts v. State, 75720

• Decision Date: 14 March 1988
• Docket Number: No. 75720,75720
• Citation: 186 Ga.App. 358,366 S.E.2d 849
• Parties: WATTS v. The STATE.
• Court: Georgia Court of Appeals

Page 849

366 S.E.2d 849

186 Ga.App. 358

WATTS v. The STATE.

No. 75720.

Court of Appeals of Georgia.

March 14, 1988.

James F. Findlay, Augusta, for appellant.

Sam B. Sibley, Jr., Dist. Atty., for appellee.

CARLEY, Judge.

In a bench trial, appellant was found guilty of vehicular homicide in the second degree. Appellant appeals from the judgment of conviction and sentence entered on the trial court's finding of guilt.

1. Appellant enumerates the general grounds.

"It is well established that evidence must be viewed in the light most favorable to the verdict. [Cits.] Applying the test set out in Jackson v. Virginia, [443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ], the reviewing court must consider whether any rational trier of fact could have found the elements of the crime beyond a reasonable doubt." Rachel v. State, 247 Ga. 130, 132, 274 S.E.2d 475 (1981). "On appeal from a finding of guilty, the presumption of innocence no longer avails, for the fact [finder has] adversely adjudicated the issue of guilt to the appellant's contentions after having considered the quantum and quality of the evidence. As an appellate court, we seek to determine only if there is evidence of the requisite degree of certainty to justify and support that determination. Our review is limited to a consideration of the evidence with a view toward approving the ... findings, considering the evidence adversely to the appellant, and approving that verdict if there is evidence sufficient to convince a rational fact finder beyond reasonable doubt. [Cit.] Considering the sufficiency only and not the weight of the evidence, we are convinced that the [adjudication of guilt] is supported by competent evidence beyond reasonable doubt. [Cit.]" Harris v. State, 166 Ga.App. 689, 305 S.E.2d 428 (1983). "We ..., do not require certainty or even proof that is persuasive to us. All we require is evidence upon which a rational [fact finder] could reasonably find the material elements of the crime beyond a reasonable doubt. [Cits.] We have no difficulty in concluding that this has been satisfied here." (Emphasis supplied.) Harden v. State, 164 Ga.App. 59, 60, 296 S.E.2d 372 (1982).

Based upon the review of the transcript it is clear that "[t]he evidence was sufficient for the trial court, as trier of fact, to find the defendant guilty of the offense charged beyond a reasonable doubt. [Cit.]" Ricks v. State, 184 Ga.App. 428, 429, 361 S.E.2d 829 (1987). Accordingly, the general grounds are without merit.

2. We have considered appellant's remaining enumerations of error and find them to be without merit.

Judgment affirmed.

BIRDSONG, C.J., DEEN and McMURRAY, P.J., and POPE, J., concur.

BANKE, P.J., and SOGNIER, BENHAM and BEASLEY, JJ., dissent.

BANKE, Presiding Judge, dissenting.

The defendant in this case was convicted of vehicular homicide in the second degree based on an accusation charging that he had caused the death of another person by what is commonly referred to as "following too close." More specifically, he was convicted of causing the death of another person, without intending to do so, by violating OCGA § 40-6-49, which provides, in pertinent part, as follows: "(a) The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

The accident occurred at approximately 6:10 p.m. on November 8, 1986. Although no evidence was introduced concerning the road conditions, the traffic citation indicates that the weather was "clear" and the road "dry." The appellant was driving a 1977 Oldsmobile, and the victim was driving a pickup truck. The appellant testified that he had been stopped behind the truck at a traffic light shortly prior to the accident and that he had then followed the truck as it turned right and proceeded down a four-lane highway, driving at an estimated speed of "around 32 miles per hour" and at an estimated distance from the truck of about three car lengths. It is apparent from other evidence that the collision occurred as the decedent was attempting to make a right turn into a commercial driveway. The appellant described the collision as follows: "[H]e stopped in front of me suddenly. I pulled to the left as hard as I could to try to avoid hitting him, but I caught the right front of my car and the left rear of his truck. The truck went into a spin sideways and then flipped." Tragically, when the truck flipped over, the decedent's head was crushed between the cab and the pavement.

The state's evidence, consisting in its entirety of some photographs of the accident scene and the testimony of two deputy sheriffs who had investigated the collision, was totally consistent with the appellant's testimony. One of the deputies in fact corroborated the appellant's testimony concerning the speed at which he had been driving immediately prior to the accident, stating that he had conducted an experiment by accelerating his patrol car as fast as possible from the intersection where the appellant and decedent had been stopped to the point of impact and that he "didn't get past 35 miles per hour to the point of impact." A breathalyzer test administered to the appellant subsequent to the accident revealed no trace of alcohol in his bloodstream.

The trial court explained as follows his reasons for finding the appellant guilty of involuntary manslaughter: "Under the evidence in this case there are no skid marks by the leading vehicle, which was driven by [the decedent], and no skid marks by [the appellant]. So, the court cannot assume, or even think, that [the decedent] came to a sudden stop. It could not have happened that way, there were no skid marks.... Then there is evidence--and giving [the appellant] the benefit of everything--he traveled 150 ... to 250 feet after impact. And if you look at these pictures, it was a right severe impact. And the court is of the opinion that under the evidence what happened is that he was just right upon the truck, and when [the decedent] decided to turn and slowed down, [the appellant] couldn't stop and he hit him. By his own testimony, he was able to see him, and if he had been a safe distance behind the vehicle--he would sure have had to have been more than three car lengths behind him, because at 30 miles an hour you travel 44 feet per second, and ... it would take that long to get his foot on the brake before he...