Frasard v. State

745 S.E.2d 716, 322 Ga. App. 468, 2013 Fulton County D. Rep. 2162, 2013 WL 3215468, 2013 Ga. App. LEXIS 545
CourtCourt of Appeals of Georgia
DecidedJune 27, 2013
DocketA13A0629
StatusPublished
Cited by5 cases

This text of 745 S.E.2d 716 (Frasard 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
Frasard v. State, 745 S.E.2d 716, 322 Ga. App. 468, 2013 Fulton County D. Rep. 2162, 2013 WL 3215468, 2013 Ga. App. LEXIS 545 (Ga. Ct. App. 2013).

Opinion

Branch, Judge.

On appeal from his conviction for speeding, Michael Frasard argues pro se and in 11 enumerations of error that the evidence was insufficient, that the State failed to show compliance with statutes mandating notice to motorists of speed limits and the use of speed detection devices, that the device used to detect Frasard’s speed was not properly authorized for use by the arresting officer, and that the speeding citation itself was invalid. Although these assertions lack merit, we vacate Frasard’s conviction and remand for resentencing because the trial court should have merged the two counts on which he was found guilty.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on the morning of April 4, 2012, a DeKalb County police officer was conducting traffic enforcement on Peachtree Road just over the DeKalb County line. The officer saw a green Lincoln Continental traveling northbound at what appeared to be a “high rate of speed.” On the basis of his training, the officer estimated that the car was traveling in excess of the posted speed limit of 35 mph. The officer then trained a laser device on the Lincoln and obtained a reading that the car was traveling at 54 mph. Frasard was issued a citation and then indicted on two counts of speeding — the first for traveling 54 mph in a 35-mph zone, and the second for traveling “in excess of the posted speed limit.” A jury found Frasard guilty on both counts, and the trial court sentenced him to 12 months probation and a $500 fine plus costs.

1. In five enumerations of error, Frasard argues that the evidence concerning his rate of speed and the venue of the incident was insufficient to sustain his conviction. We disagree.

(a) The State need not prove that a driver “was traveling at [a] precise rate of speed in order to obtain a conviction” for speeding. In the Interest of J. D. S., 273 Ga. App. 576, 577 (615 SE2d 627) (2005), citing Jones v. State, 258 Ga. App. 337, 338 (574 SE2d 398) (2002). “ ‘[T]o be guilty of speeding, one need only exceed the designated [469]*469speed limit. Greater speeds by specified increment affect only the punishment and are therefore not material allegations to prove the crime of speeding.’ ” In the Interest of J. D. S., supra, quoting Jones, supra. Because “ ‘[a]n officer’s estimate of speed is sufficient to support a conviction on a speeding violation,’ ” the officer’s testimony that Frasard was traveling above the speed limit was sufficient to sustain his conviction. Id., quoting In the Interest of B. D. S., 269 Ga. App. 89, 91 (1) (603 SE2d 488) (2004); see also OCGA §§ 40-6-181 (defining offense of driving a vehicle “in excess of . . . maximum limits”), 40-6-182, 40-6-183 (setting out exceptions thereto).

(b) Although Frasard argues that the State failed to prove that he was speeding in DeKalb County, both the citation and the officer’s testimony as to the location of his enforcement action placed the incident within the boundaries of that county. Frasard himself testified, moreover, that he drove over the county line before he saw the car of the officer who pulled him over. This evidence was sufficient to establish venue in DeKalb County. Brewster v. State, 300 Ga. App. 143, 145 (684 SE2d 309) (2009) (officer’s testimony was sufficient to prove venue of speeding incident in a particular county).

2. Frasard argues that his conviction must be overturned because the State failed to prove the existence of signs at the county line indicating that (a) the speed limit was 35 mph and (b) speed detection devices were in use. We disagree.

(a) OCGA § 40-6-181 (b) (1) provides that the maximum speed in an “urban or residential district” is 30 mph. State and county authorities have the power to vary maximum speeds, with certain limits, “on the basis of an engineering and traffic investigation.” See OCGA §§ 40-6-182, 40-6-183 (a); Dept. of Transp. v. Watts, 260 Ga. App. 905, 907 (581 SE2d 410) (2003) (governmental actions under OCGA §§ 40-6-181 and 40-6-182 “are analogous to the legislative act of making law”).

The arresting officer’s testimony established that the speed limit in effect at the scene was 35 mph, or greater than the statutory maximum of 30 mph. Frasard has cited no authority, and we have found none, that requires a governmental unit to prove its compliance with OCGA § 40-6-182 or§40-6-183 in order to obtain a conviction for the crime of speeding. See Brooker v. State, 206 Ga. App. 563, 565 (426 SE2d 39) (1992) (noting the presumption that a public officer has done his duty in all cases involving the traffic statutes). Given that the variance from the statutory speed limit of 30 mph to the non-statutory limit of 35 mph could only work in Frasard’s favor, moreover, Frasard cannot show that he was prejudiced by the State’s imposition of a higher, nonstatutory speed limit in this case.

[470]*470(b) OCGA § 40-14-6 (a) provides:

Each county, municipality, college, and university using speed detection devices shall erect signs on every highway which comprises a part of the state highway system at that point on the highway which intersects the corporate limits of the municipality, the county boundary, or the boundary of the college or university campus. Such signs shall be at least 24 by 30 inches in area and shall warn approaching motorists that speed detection devices are being employed. No such devices shall be used within 500 feet of any such warning sign erected pursuant to this subsection.

As this Court has repeatedly held, incomplete compliance with this statute does not mandate that evidence obtained by the speed detection device be excluded. Ferguson v. State, 263 Ga. App. 40, 41 (3) (587 SE2d 195) (2003); Royston v. State, 166 Ga. App. 386 (304 SE2d 732) (1983); Ferguson v. State, 163 Ga. App. 171, 172 (1) (292 SE2d 87) (1982). The arresting officer testified that he had verified the existence and extent of a 35 mph speed limit zone at the county line by riding his motorcycle on both sides of that line and physically verifying the posted speed limits in the area. This testimony as to Frasard’s speeding was admissible, and the conviction obtained on the basis of that testimony lawful. Id.

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Bluebook (online)
745 S.E.2d 716, 322 Ga. App. 468, 2013 Fulton County D. Rep. 2162, 2013 WL 3215468, 2013 Ga. App. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frasard-v-state-gactapp-2013.