Frye v. State , 189 Ga. App. 181 ( 1988 )

Pope, Judge.

Defendant appeals his conviction of driving under the influence of alcohol. Held:

Defendant contends the trial court erred in denying his motion for directed verdict of acquittal, arguing that the evidence was insufficient to support the jury’s verdict. We disagree.

The evidence at trial showed that at approximately 11:00 p.m. on a Sunday, Officer James Meadows of the Gwinnett County Department of Public Safety saw defendant “staggering to a degree on the right-hand side of the roadway [and,] approximately 100 yards down the road [, he observed] a Toyota that was turned upside down . . . on the right-hand side of the road.” Officer Meadows got out of his “patrol car” to investigate, found “no one inside the [overturned] car,” talked with an unidentified man and then apprehended defendant, who was “approximately 125 to 150 yards from the scene. . . .” Defendant was “unsteady” on his feet and his clothing was soiled, a fact which Officer Meadows attributed to defendant having crawled out of the overturned car. “He was unkempt [, his] eyes were watery [, his] face was fairly flushed [and he] had a strong odor of alcoholic beverages about his person. Defendant denied that he was driving the car, which was subsequently discovered to be registered to him. It was stipulated at trial that defendant was informed of his implied consent right and refused to take a blood alcohol test.

“It is true, . . . that to be guilty of the offense of driving under the influence of intoxicants one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol or drugs. Carr v. State, 169 Ga. App. 679, 680 (2) (314 SE2d 694) (1984). However, it is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. (Cit.) In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt. (Cit.) Fuller v. State, 166 Ga. App. 734, 735 (1) (305 SE2d 463) (1983).

“Though the officer did not actually see [the defendant’s] car move, he observed circumstances from which the jury could infer both that [defendant] was in actual physical control of the car while it was moving to the location at which the officer found it and that [defendant] was intoxicated during that movement. The jury was authorized not to accept an alternative hypothesis offered by [defendant]. [Cit.]” Jones v. State, 187 Ga. App. 132, 133 (1) (369 SE2d 509) (1988). (Punctuation omitted.) As this court said in the case of State v. Hill, 178 Ga. App. 669 (344 SE2d 491) (1986), “[t]he jury is the best ‘doctor of doubt.’ ” Id. at 670. Because there was sufficient evidence presented from which a rational trier of fact could find defendant guilty beyond a reasonable doubt of the offense charged, we affirm the denial of defendant’s motion for directed verdict. Accord Jones v. State, supra at (1); Boose v. State, 185 Ga. App. 728 (365 SE2d 534) (1988); State v. Hill, supra; Fuller v. State, 166 Ga. App. 734 (1) (305 SE2d 463) (1983).

Judgment affirmed.

Deen, P. J., Banke, P. J., Carley, Benham, and Beasley, JJ., concur. Birdsong, C. J., McMurray, P. J., and Sognier, J., dissent.