Wilson v. State

• Decision Date: 09 July 1998
• Docket Number: No. A98A0088.,A98A0088.
• Citation: 503 S.E.2d 924,233 Ga. App. 327
• Parties: WILSON v. The STATE.
• Court: Georgia Court of Appeals

503 S.E.2d 924

233 Ga. App. 327

WILSON v. The STATE.

No. A98A0088.

Court of Appeals of Georgia.

July 9, 1998.

Robert P. Wilson, Decatur, for appellant.

June D. Green, Solicitor, Wanda L. Dallas, Assistant Solicitor, for appellee.

BLACKBURN, Judge.

Johnny W. Wilson was charged with the failure to stop at the scene of an accident pursuant to OCGA § 40-6-270. After a mistrial was declared in the proceedings below, Wilson filed this appeal. For the reasons set forth below, we reverse.

1. Wilson contends that the trial court erred by denying his motion for directed verdict of acquittal at the close of the State's case against him. "The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Citations, punctuation and emphasis omitted.) Noble v. State, 225 Ga.App. 470, 484 S.E.2d 78 (1997). See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "A directed verdict of acquittal should be granted 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. OCGA § 17-9-1. In reviewing the denial of a motion for a directed verdict made at the close of the State's case, an appellate court considers not only the evidence produced in the State's case-in-chief, but also any evidence introduced subsequent to the motion by the defense." (Punctuation omitted.) Tyler v. State, 198 Ga.App. 685, 687-688(2), 402 S.E.2d 780 (1991).

Based on the evidence in this case, the trial court properly denied Wilson's motion for a directed verdict. The record shows that, on the night of February 14, 1995, the Honda being driven by Kimberly Mendez was struck head on by a car which crossed over the centerline of the road. Mrs. Mendez' husband, Robert Mendez, was riding in the passenger's seat. Mrs. Mendez described the car which hit her as a light blue LTD or Crown Victoria. Mr. Mendez described the car as a light blue, late 1980s model Ford which was either a Crown Victoria or LTD.

After the collision, the Mendezes pulled into a driveway, and the car which struck them pulled into an adjacent driveway. After his car came to a stop, Mr. Mendez jumped out to get a better look at the other car. While standing six or seven feet away, Mr. Mendez watched the car which struck his car being reversed out of the driveway in which it had been driven. Mr. Mendez stated that he got a good look at the driver of the car whom he later identified as Wilson. Although he was standing toward the rear of the car, Mr. Mendez testified that he nonetheless got a good look at Wilson's face because he had turned his face to the rear of the car to see where he was backing up.

Mr. Mendez also read the tag number of the car, and, although he had no way to write it down, he remembered that "it was something to the effect of BTJ 136 or 186," which he told the police officer at the scene of the accident. Wilson, an employee of the family-owned business of Wilson Welding Service, Inc., is the registered owner of a light blue 1987 Ford Crown Victoria with the tag number BJT 186. Although Wilson argues that he could not have been the hit-and-run driver because there was no damage to his car, his own expert testified that it was possible that a Ford Crown Victoria could be involved in an accident with a Honda without being damaged. Furthermore, Officer Britman of the City of Atlanta Police Department testified that he inspected Wilson's car and that he believed the car had been damaged and repaired. Under the standard of Jackson v. Virginia, supra, any rational trier of fact could have found Wilson guilty of the crime of hit and run beyond a reasonable doubt. Accordingly, Wilson's motion for a directed verdict of acquittal was properly denied.

2. Wilson also contends that the trial court erred by denying his motion for directed verdict of acquittal notwithstanding the mistrial. However, "[n]o statutory provision for judgment n.o.v. exists in the statutory criminal law of Georgia[,] and the Supreme Court, in Wilson v. State, 215 Ga. 775(1), 113 S.E.2d 607 (1960), declined to create such a remedy judicially. In State v. Bilal, 192 Ga.App. 185, 384 S.E.2d 253 (1989), this court noted that the legislature's creation, in 1971, of a right to move for directed verdict during trial, codified at OCGA § 17-9-1, `did not affect the holding in Wilson, supra, for the legislature did not create a right to judgment notwithstanding the verdict in a criminal case.' Bilal, 192 Ga.App. at 186, 384 S.E.2d 253. OCGA § 17-9-1 permits a defendant to seek a directed verdict of acquittal only during trial. By contrast, the Federal Rules of Criminal Procedure permit a defendant to seek such relief not only after the return of a verdict of guilty (F.R.Cr.P.29(b)) but also after mistrial (F.R.Cr.P.29(c)). If the Georgia legislature wishes to create the right to seek post-conviction or post-mistrial judgment of acquittal it may, following the lead of federal statutory law, do so. At this time, however, the law of Georgia provides for neither a motion for judgment of acquittal notwithstanding the verdict nor a ...