Fitzpatrick v. State

793 S.E.2d 446, 339 Ga. App. 135, 2016 Ga. App. LEXIS 590
CourtCourt of Appeals of Georgia
DecidedOctober 27, 2016
DocketA16A1336
StatusPublished
Cited by2 cases

This text of 793 S.E.2d 446 (Fitzpatrick v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fitzpatrick v. State, 793 S.E.2d 446, 339 Ga. App. 135, 2016 Ga. App. LEXIS 590 (Ga. Ct. App. 2016).

Opinion

Ray, Judge.

A jury convicted Brendon John Fitzpatrick1 of serious injury by vehicle (OCGA § 40-6-394) and violation of the open container law (OCGA § 40-6-253).2 He appeals from the denial of his motion for new trial, arguing that the evidence was insufficient to sustain his convictions and that the trial court erred in its instructions to the jury For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the jury’s verdict. Whitehead v. State, 304 Ga. App. 213, 214 (1) (695 SE2d 729) (2010).

Between 4:30 a.m. and 5:00 a.m. on September 5, 2013, Melvin Johnson, Jr., was driving to work, heading toward Northlake on Brockett Road. Fitzpatrick, who was driving in the opposite direction, struck Johnson’s vehicle as Fitzpatrick attempted to make a left turn. Although Johnson saw a vehicle heading toward him and braced himself, he did not recall the impact because it rendered him unconscious. An ambulance took Johnson to the hospital following the collision. His right leg was broken, and he wore a hip-to-ankle brace for six months and used a wheelchair, crutches, and a walker for months afterward. He could not walk on his own until eight months after the collision, and he still wears knee braces as a result of the incident.

The police officer who responded to the scene spoke to Fitzpatrick, who was standing next to the driver’s side of his vehicle. Fitzpatrick told the officer he had been driving. The officer noticed a strong smell of alcohol coming from Fitzpatrick’s person and that his eyes were watery and bloodshot. An open beer can was wedged between the passenger seat and the door. Fitzpatrick was not wearing pants; he was clad only in boxer briefs, a T-shirt, socks, and shoes. [136]*136When the officer asked about this, Fitzpatrick acknowledged that he was wearing underwear. Although Fitzpatrick agreed to take the horizontal gaze nystagmus test, on which all six indicators showed alcohol impairment, he refused further field sobriety tests and swore at the officer. The officer then arrested Fitzpatrick based on the results of the test, the odor of alcohol, and his admission that he had been driving. The officer read Fitzpatrick the implied consent warning twice, but declined to read it again when Fitzpatrick requested that he do so a third time. Fitzpatrick refused a breath test but requested a blood test. However, he ultimately refused to sign the consent form for the blood test.

Fitzpatrick later told a nurse at the jail that he had been driving the vehicle. When he testified at trial in his own defense, he acknowledged that he had been drinking beer in the car and that he had been out drinking with friends. While he also acknowledged that he told the officer that he was driving, he claimed at trial that he actually had not been driving and that his friend had been at the wheel.

1. Fitzpatrick argues that the State failed to introduce evidence sufficient to sustain his convictions. We disagree.

(a) Serious injury by vehicle. Fitzpatrick contends that no witness testified to seeing him driving; that the State presented no medical evidence to corroborate the victim’s statements about the injuries to his leg; and that no expert or documentary evidence established that, as charged in the indictment, he caused the collision by turning left into the other driver’s path. He also argues that the State failed to prove an essential element of the offense as charged in the indictment. The evidence was sufficient to sustain his conviction for this offense.

OCGA § 40-6-394 provides, in part:

Whoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or a member thereof . . . which renders the body or any member thereof useless through the violation of Code Section 40-6-390 or 40-6-391 shall be guilty of the crime of serious injury by vehicle. . . .

First, the evidence was sufficient to authorize the jury to find that Fitzpatrick was driving. The evidence showed that he told a police officer and a nurse that he had been driving the vehicle. Although he later recanted this admission, the jury was authorized to [137]*137believe his earlier statements. Whitehead, supra.3 Further, although Johnson did not remember the collision, he testified that he saw a car in his peripheral vision approaching from the left and braced himself for impact. The officer testified that he determined how the accident occurred through the statements of Johnson and of Fitzpatrick and his passenger. The officer specifically testified that Fitzpatrick told him the accident occurred as Fitzpatrick “was getting ready to make a left turn onto Highway 78 from Brockett Road.” See generally Wynn v. State, 236 Ga. App. 98, 100 (2) (511 SE2d 201) (1999) (totality of the circumstances, including defendant’s physical position and proximity to open beer can indicated that he was in physical control of vehicle and in possession of open container even though no one saw him driving the car).

Second, the evidence was sufficient to authorize the jury to find that Johnson’s injuries fell within the provisions of the serious injury by vehicle statute, OCGA § 40-6-394. Although Fitzpatrick argues that the State should have presented expert testimony as to Johnson’s injuries, Johnson testified about the injuries to his leg, that it was essentially useless for months and that he still used leg braces. See Keef v. State, 220 Ga. App. 134, 135, 137 (1) (a) (469 SE2d 318) (1996) (evidence sufficient where it demonstrated temporary uselessness of victim’s hip and legs). The testimony of a single witness is generally sufficient to establish a fact. See generally Brown v. State, 293 Ga. App. 224, 226 (1) (666 SE2d 600) (2008) (State not required to prove victim’s injuries with medical evidence where victim testified as to his injuries in an aggravated assault case).

Finally, Fitzpatrick argues that because the jury acquitted him of driving under the influence, the State failed to prove an essential element of the crime of serious injury by motor vehicle “as indicted.”4

[138]*138The indictment for the count of serious injury by motor vehicle provided that Fitzpatrick rendered one of Johnson’s knees useless “through a violation of Driving Under the Influence, as alleged in Count 2 of this indictment[.]” (Emphasis supplied.) This language tracks the language of OCGA § 40-6-394

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Bluebook (online)
793 S.E.2d 446, 339 Ga. App. 135, 2016 Ga. App. LEXIS 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fitzpatrick-v-state-gactapp-2016.