Hammond v. the State , 334 Ga. App. 781 ( 2015 )

FIRST DIVISION
DOYLE, C. J.,
PHIPPS, P. J, and BOGGS, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
November 20, 2015
In the Court of Appeals of Georgia
A15A0798. HAMMOND v. THE STATE. DO-033 C
DOYLE, Chief Judge.
Jennifer Hammond appeals from her conviction for driving under the influence
of alcohol (“DUI”) to the extent that it was less safe to drive,1 impeding the flow of
traffic,2 and improper parking.3 She contends that the trial court erred by admitting
evidence of two prior DUI convictions under OCGA § 24-4-417 (a) (1). Because the
record supports the trial court’s ruling, we affirm.
1
OCGA § 40-6-391 (a) (1).
2
OCGA § 40-6-184 (a).
3
OCGA § 40-6-203 (a) (1) (C).
Construed in favor of the verdict,4 the evidence shows that a police officer
encountered Hammond in her vehicle stopped at a traffic light at around 12:50 a.m.
one morning. When the light turned green, Hammond did not proceed through the
light, but the officer was responding to a call, so he did not investigate further after
visually determining that there appeared to be no emergency. After attending to the
call, the officer returned to the scene approximately 15 or 20 minutes later and found
Hammond still in her vehicle, still at the traffic light. He pulled behind Hammond’s
vehicle, exited his patrol car, and noticed that Hammond appeared to be asleep. After
the officer knocked on her window several times, Hammond awoke and got out of the
vehicle, at which time the officer smelled a strong odor of alcohol on her breath.
Hammond was unsteady on her feet, and the officer, who was a supervisor, called for
another officer to investigate the suspected DUI offense.
Soon thereafter, an investigating officer responded and made contact with
Hammond. The second officer also noticed that Hammond was unsteady on her feet,
and her breath smelled of alcohol. As she spoke to the officer, Hammond explained
in slurred speech that she had consumed three alcoholic drinks and wished to go
home. The officer asked Hammond to submit to field sobriety testing, and Hammond
4
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
2
declined. Based on his observations of Hammond, the officer placed her under arrest
and read her the implied consent notice. The officer then asked Hammond to submit
to a breath test, and Hammond again declined. During processing at the police station,
Hammond again refused a breath test and told the officer, “Man, this is my third
DUI.”
Hammond was charged with DUI, impeding traffic flow, and improper parking.
Prior to trial, the State moved to introduce evidence of Hammond’s two prior DUI
convictions, and following a hearing, the trial court ruled that the convictions were
admissible under OCGA § 24-4-417 (a) (1). At trial, a jury found Hammond guilty
as to each count, and Hammond filed this appeal.
Hammond argues that the trial court erred by admitting the evidence of her two
prior DUI convictions under OCGA § 24-4-417 (a) (1) because they were not relevant
to proving her guilt in this case. We review such a ruling for an abuse of discretion,5
and we discern none here.
OCGA § 24-4-417 (a) (1) provides as follows:
(a) In a criminal proceeding involving a prosecution for a [DUI offense],
evidence of the commission of another [DUI offense] on a different
5
Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).
3
occasion by the same accused shall be admissible when: (1) The accused
refused in the current case to take the state administered test required by
Code Section 40-5-55 and such evidence is relevant to prove
knowledge, plan, or absence of mistake or accident . . . .
Here, the State successfully sought admission of the prior DUI offenses on the
ground that they were relevant to prove Hammond’s knowledge and plan. Hammond
argues that although she refused the state administered test as referenced in the
statute, her prior DUI convictions are inadmissible under the analysis outlined in
Frost v. State6 (“Frost I”). That case addressed a scenario in which the defendant
refused sobriety tests, and the trial court admitted evidence of prior DUI convictions
in which the defendant had also refused sobriety tests.7 This Court reversed, noting
that the prior DUI convictions involved refusals to test, and the defendant “did not
provide an explanation or excuse at trial for his refusal to take the state-administered
tests in the present case,” so the prior convictions were not relevant to show the
defendant’s knowledge in the present case.8 The Court also held that DUI is a crime
6
328 Ga. App. 337 (761 SE2d 875) (2014), reversed by State v. Frost, 297 Ga.
296 (773 SE2d 700) (2015).
7
See id. at 341-343 (2).
8
See id. at 343 (2).
4
of general intent: “[T]he State need not prove intent to commit the crime. Admission
of the similar transaction evidence as proof of knowledge that drinking alcoholic
beverages made him a less safe driver did not elucidate or throw light upon whether,
in this instance, he committed the same crime again; no culpable mental state was
required.”9 Based on Frost I, Hammond makes the same argument here, noting also
that the Supreme Court of Georgia had granted a writ of certiorari in Frost I.
Bearing out this foreshadowing, the Supreme Court of Georgia recently spoke
on the issue in State v. Frost10 (“Frost II”) after the appellate briefing in this case. The
High Court reversed this Court, holding that the trial court did not abuse its discretion
by admitting the evidence, and explained as follows:
Proof that the accused on prior occasions had driven under the influence
of the same or a similar intoxicant may strengthen substantially the
inference about the presence of an intoxicant [in the present case]. This
is so because . . . it might properly be inferred from evidence of prior
occasions on which the accused had driven under the influence that the
accused had an awareness that his ingestion of an intoxicant impaired
his ability to drive safely. Such awareness, in turn, would offer an
explanation for why the accused refused the test on this occasion,
9
(Punctuation omitted.) Id., quoting Jones v. State, 326 Ga. App. 658, 664-665
(1) (b) (757 SE2d 261) (2014).
10
297 Ga. at 296.
5
namely, that he was conscious of his guilt and knew that the test results
likely would tend to show that he was, in fact, under the influence of a
prohibited substance to an extent forbidden by OCGA § 40-6-391 (a).
Prior occasions on which the accused was arrested and charged with
driving under the influence also could permit an inference in some
circumstances that the accused had acquired knowledge about the means
by which law enforcement officers determine whether and to what
extent a driver is under the influence of an intoxicant, and such
awareness likewise might help to explain a refusal in the present case to
submit to a test. In either event, the trier of fact might well conclude that
an adverse inference about the presence of an intoxicant is more
warranted than it otherwise would be, and the trier of fact might decide
that the inference can bear more weight than it otherwise could. This is
true when the accused refused the required tests on the prior occasions,
and it is true even when the accused offers no evidence to explain or
excuse his refusal on this occasion.11
This analysis directly applies in the present case, especially because Hammond
had undergone sobriety testing in the prior cases, and she refused in this case. When
asked for a breath sample, Hammond refused, spontaneously noting that “this is my
third DUI.” In light of the holding in Frost II, the trial court did not abuse its
11
(Citation omitted; emphasis supplied.) Id. at 305.
6
discretion by allowing the State to introduce evidence of Hammond’s prior DUI
convictions.12
Judgment affirmed. Phipps, P. J., and Boggs, J., concur.
12
Hammond does not dispute that the current rules of evidence, as interpreted
by the courts, apply to her 2014 trial. See generally Moran v. State, 257 Ga. App. 236,
237-238 (3) (570 SE2d 673) (2002) (“[O]n appeal we apply the law as it exists at the
time of appeal rather than the law prevailing at the rendition of the judgment under
review, where the law has been changed in the meantime and where no vested right
will be impaired.”); State v. Martin, 266 Ga. 244, 246 (3) (466 SE2d 216) (1996) (law
changing scope of evidence that may be offered in trial but that does not affect
manner or degree of punishment and does not alter substantive rights is applicable to
case pending on appeal on effective date); see also Hill v. Willis, 224 Ga. 263, 265
(161 SE2d 281) (1968) (appellate court applies the law as it exists at the time opinion
is rendered).
7