Merrell v. State , 192 Ga. App. 100 ( 1989 )

192 Ga. App. 100 (1989) 383 S.E.2d 905

MERRELL
v.
THE STATE.

A89A1154.

Court of Appeals of Georgia.

Decided June 22, 1989.

Roger E. Bradley, for appellant.

Roger G. Queen, District Attorney; for appellee.

McMURRAY, Presiding Judge.

Defendant was convicted of "the offense of habitual violator" and the offense of driving under the influence (of alcohol). Via three enumerations of error, he asserts the general grounds and the impropriety of an evidentiary ruling. Held:

1. In his first and second enumerations of error, defendant contends the evidence was insufficient to support the jury's verdict. In this regard, he contends the State failed to prove that he operated a motor vehicle at all since the arresting officer testified that he found defendant behind the wheel of a vehicle which had run out of gas. This contention is without merit. The officer also testified that he saw defendant driving the vehicle (less than 10 feet from where the officer was standing) shortly before it ran out of gas.

The evidence demonstrated that defendant operated a motor vehicle after receiving notice of the revocation of his license and his status as an habitual violator. It also demonstrated that at the scene defendant smelled of alcohol, his eyes were red, his speech was slurred and he was unsteady on his feet. (Defendant refused a blood alcohol test so no evidence concerning his blood alcohol content was presented.) The evidence presented by the State was sufficient to enable any rational trier of fact to find defendant guilty of "habitual violator" and driving under the influence beyond a reasonable doubt. Miller v. State, 156 Ga. App. 125 (274 SE2d 122); Brooks v. State, 187 Ga. App. 194 (1) (369 SE2d 801).

2. Defendant contends the trial court erred in admitting into evidence six prior "habitual violator convictions" (from December 1982 through October 1986). This evidence was admitted to show defendant's bent of mind and course of conduct with regard to the habitual violator count and the trial court instructed the jury that the evidence was being admitted for that limited purpose. We find no error. Sultenfuss v. State, 185 Ga. App. 47, 48 (2) (363 SE2d 337). Compare Hester v. State, 159 Ga. App. 642, 643 (2) (284 SE2d 659).

Judgment affirmed. Carley, C. J., and Beasley, J., concur.