Flanders v. State

371 S.E.2d 918, 188 Ga. App. 98, 1988 Ga. App. LEXIS 897

• Court: Court of Appeals of Georgia
• Decided: July 15, 1988
• Docket: 76210
• Status: Published

Opinions

Carley, Judge.

Appellant was convicted of driving under the influence of drugs in violation of OCGA § 40-6-391 (a) (2). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. At trial, appellant’s defense was based upon evidence that the drug which impaired his driving ability had been prescribed for him by a medical doctor. Appellant also produced evidence that he was not aware that the drug could affect his ability to drive, or that it had, in fact, impaired his ability to drive at the time of his arrest. On this evidence, appellant requested a charge on the defense of involuntary intoxication. See OCGA § 16-3-4. The trial court’s refusal to give this requested charge is enumerated as error.

OCGA § 40-6-391 (b) does provide that the legal entitlement of a person charged with driving under the influence of drugs to use a drug does not, in and of itself, afford that person with a defense to a charge of violating the Code section. Where, however, there is evidence authorizing an instruction under OCGA § 16-3-4, OCGA § 40-6-391 (b) does not resolve the issue which is raised by appellant. If, in fact, a defendant charged with driving under the influence of drugs would otherwise be entitled to an instruction under OCGA § 16-3-4, such an instruction would be required to be given without regard to whether the drug involved was legally prescribed or not.

The determinative factor in this case is that there was no evidence supporting a charge on OCGA § 16-3-4, even if there were evidence produced at trial to support a finding that appellant was “involuntarily intoxicated” within the meaning of subsection (b) of OCGA § 16-3-4. This is readily apparent because subsection (a) of OCGA § 16-3-4, as incorporated into appellant’s request to charge, provides that “[a] person shall not be found guilty of a crime when, at the time of the act. . . constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act.” (Emphasis supplied.) Although appellant contends that he was “involuntarily intoxicated” as defined in subsection (b) of OCGA § 16-3-4, there is absolutely no evidence that, as a result of such “involuntary intoxication,” he did not have the capacity to distinguish between right and wrong as required by subsection (a) of that statute. Thus, the requested charge was not supported by the evidence and the trial court did not err in failing to instruct the jury in accordance with said request.

2. Appellant requested a charge on misfortune or accident. See OCGA § 16-2-2. The trial court’s refusal to give this requested charge is enumerated as error. A review of the transcript reveals, however, that there was no evidence that appellant himself did anything by accident or mistake. Accordingly, the requested charge was not adjusted to the evidence and it was not error for the trial court to refuse to give it. See Sampson v. State, 165 Ga. App. 833, 834 (4) (303 SE2d 77) (1983).

3. The trial court’s failure to charge on mistake of fact, without request, is enumerated as error. “Since mistake of fact was not [his] sole defense, [appellant] was not entitled to the charge as a matter of law; and in any case, the jury was properly charged as to the elements of the crime and the requirement of criminal intent, and moreover as to the [S]tate’s burden of proof and principles as to the credibility of the witnesses. The finding of the requisite criminal intent negates any possibility that the jury might have believed the appellant operated under mistake of fact even if the jury had been given such a charge.” Hobgood v. State, 162 Ga. App. 435, 436-437 (291 SE2d 570) (1982). See also Pitts v. State, 184 Ga. App. 220 (361 SE2d 234) (1987). This enumeration is without merit.

4. The trial court refused to give appellant’s requested charge on the State’s burden of proving that a crime had been committed. This refusal is enumerated as error. The transcript reveals that the trial court’s charge to the jury on the State’s burden of proof was otherwise full and proper. Therefore, there is no error in refusing to give the requested charge. Herrod v. State, 182 Ga. App. 876, 877 (2) (357 SE2d 317) (1987).

5. The trial court’s failure to declare a mistrial or to admonish the jury to disregard certain statements made by the prosecuting attorney in his closing argument is enumerated as error. The record shows that, “[although appellant objected to this statement, he did not request a rebuke or move for mistrial so there is nothing for us to review. [Cit.]” Cherry v. State, 174 Ga. App. 145, 146 (2) (329 SE2d 580) (1985).

6. Appellant enumerates the general grounds. After a careful review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence produced at trial proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Kimberly v. State, 180 Ga. App. 521 (349 SE2d 489) (1986).

Judgment affirmed.

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