Janasik v. State

746 S.E.2d 208, 323 Ga. App. 545, 2013 Fulton County D. Rep. 2364, 2013 WL 3388861, 2013 Ga. App. LEXIS 599
CourtCourt of Appeals of Georgia
DecidedJuly 9, 2013
DocketA13A0253
StatusPublished
Cited by6 cases

This text of 746 S.E.2d 208 (Janasik 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
Janasik v. State, 746 S.E.2d 208, 323 Ga. App. 545, 2013 Fulton County D. Rep. 2364, 2013 WL 3388861, 2013 Ga. App. LEXIS 599 (Ga. Ct. App. 2013).

Opinion

MCMILLIAN, Judge.

Andrew Michael Janasik appeals the trial court’s denial of his motion for new trial after a jury convicted him of driving under the influence (less safe) (OCGA § 40-6-391 (a) (1)), failure to maintain lane (OCGA § 40-6-48), and a violation of Georgia’s safety belt law (OCGA § 40-8-76.1 (b)).

Viewed in the light most favorable to the verdict,1 the evidence at trial showed that on the night of November 15, 2007, Georgia State Trooper Stacey Collins was working in his marked police vehicle when he encountered Janasik at the intersection of Piedmont and Peachtree Roads in Fulton County. The first thing Collins noticed was that Janasik was not wearing his seat belt. When the traffic light changed to green, Janasik pulled through the intersection, and Collins observed him weave across the yellow line into another lane, move back into his original lane, and then shortly after, change lanes into the other lane. Collins initiated a traffic stop based upon the failure to maintain lane and the seat belt violation. As the officer approached Janasik’s car, he immediately noticed “the strong odor of alcoholic beverage” coming from inside the vehicle. Collins also observed that Janasik’s eyes were bloodshot and watery, and his speech was slurred. When Collins asked if Janasik had anything to drink that night, he first replied “nothing,” then he said “one” drink at dinner, and then he said “half,” finally conceding that he had consumed “half a beer.” As Janasik exited the car, he used the door to brace himself, and he was unsteady on his feet as he walked.

Collins offered to perform field sobriety evaluations, and the first test he administered was the horizontal gaze nystagmus (“HGN”) test. Janasik exhibited six out of the six clues for impairment on that [546]*546test. Collins then asked Janasik to perform the walk-and-turn test. Janasik initially agreed, but after he was unable to maintain the required stance, he told Collins that he could not perform the test because he had a swollen ankle. Janasik explained that he had hurt his ankle playing tennis, basketball and soccer. Janasik also cited his ankle as a reason for not performing the one-leg stand test. Collins suggested that he perform the test by standing on his noninjured leg, but Janasik told him that it hurt his ankle too much to lift it in the air. Collins observed no outward indication of pain, however, when Janasik shifted on his feet several times that night. Janasik also refused to submit to the preliminary breath test. At that point, Collins placed Janasik under arrest based upon his opinion that Janasik was a less safe driver due to his consumption of alcohol. Collins then read Janasik the implied consent notice, and Janasik refused Collins’ request to submit to a breath test.

The State also introduced evidence of a prior similar transaction. Officer Douglas LaCompt of the Georgia State Patrol testified that approximately nine months earlier, on the evening of February 25, 2007, he saw Janasik driving northbound on Roswell Road in Fulton County when he observed him cross the double-yellow line twice, change lanes without using his signal and then cross the white fog line on the right side of the road. LaCompt initiated a traffic stop, and the first thing he detected was a strong odor of alcoholic beverage coming from Janasik’s car. When LaCompt asked Janasik for his driver’s license, he handed the officer a credit card with dolphins on it. LaCompt observed that Janasik was unsteady on his feet after he exited the vehicle, and he had slurred speech and bloodshot eyes. LaCompt asked Janasik if he would submit to the field sobriety tests, but he refused. He did not, however, indicate that he could not perform the tests due to any injury. LaCompt then placed Janasik under arrest and read him the implied consent notice; Janasik subsequently refused to submit to the officer’s request for a breath test. A jury later convicted Janasik of DUI based upon the February incident.

1. Janasik first asserts that the trial court erred in admitting the similar transaction evidence without first weighing the danger of unfair prejudice. He argues that this error was compounded by the prosecution’s improper “propensity” arguments stemming from this evidence. We review the trial court’s decision whether to admit the similar transaction evidence for an abuse of discretion. See Reed v. State, 291 Ga. 10, 13-14 (3) (727 SE2d 112) (2012).

Prior to trial, the State filed a notice of its intent to present the February 2007 similar transaction evidence for purposes of “identity, motive, scheme, bent of mind, course of conduct, and/or absence of [547]*547accident,” and Janasik filed a motion in opposition to the State’s notice. Following a hearing, which apparently was not transcribed, the trial court denied the motion. In its order, filed December 10, 2010, the trial court cited Janasik’s

very thorough Brief, outlining the peculiarity of Georgia law, which permits the utilization of prior incidents, commonly referred to as “similars” in DUI trials. Although the material was prepared in a scholarly fashion, this Court is constrained to follow the precedent of the Georgia Supreme Court which authorizes utilization of prior convictions, because of the “similarity” of the incidents. Perhaps enactment of the revised rules of evidence in the upcoming legislative session will no longer permit this bent of mind analysis, but short of that occurrence, this Court must DENYDefendant’s motions, and permit utilization of similar occurrences.

Janasik’s trial took place in October 2011, and thus was subject to Georgia’s evidentiary rules as they existed prior to January 1, 2013, when Georgia’s new evidentiary code went into effect. See Ga. L. 2011, p. 99, § 1. Accordingly, at the time of the trial court’s finding in this case, “course of conduct and bent of mind [were] appropriate purposes for which similar transaction evidence [could] be introduced.” (Citations and punctuation omitted.) Newton v. State, 313 Ga. App. 889, 891-892 (1) (a) (723 SE2d 95) (2012). See also Henderson v. State, 303 Ga. App. 527, 529 (1) (693 SE2d 896) (2010); Wade v. State, 295 Ga. App. 45, 48 (670 SE2d 864) (2008) (“[W]e are not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence . . . .”) (citations omitted).

And in the absence of a transcript of the similar transaction hearing, we must presume that the State made the requisite showings for the introduction of this evidence and that, after hearing the evidence, the trial court correctly exercised its discretion in denying Janasik’s motion. Guild v. State, 234 Ga. App. 862, 866 (4), n. 2 (508 SE2d 231) (1998) (appellate court will presume the correctness of similar transaction proceedings and resultant findings in the absence of a transcript). Thus, we must presume that the trial court properly weighed the issue of prejudice in reaching its decision. Certainly, Janasik’s brief thoroughly addressed the issue, and the trial court obviously read and considered his brief.

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746 S.E.2d 208, 323 Ga. App. 545, 2013 Fulton County D. Rep. 2364, 2013 WL 3388861, 2013 Ga. App. LEXIS 599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/janasik-v-state-gactapp-2013.