Thomas A. Hassard v. State

• Court: Court of Appeals of Georgia
• Decided: February 7, 2013
• Docket: A12A2385
• Status: Published

Opinion

FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/

February 7, 2013

In the Court of Appeals of Georgia A12A2385. HASSARD v. THE STATE.

BOGGS, Judge.

Thomas Hassard appeals from his conviction for DUI less-safe. He contends

that the evidence is insufficient to sustain his conviction, that the trial court erred in

considering another DUI less-safe conviction as a similar transaction and erred in

denying his plea in bar on double jeopardy grounds. For the following reasons, we

affirm.

Construed in favor of the verdict, the evidence showed that a woman was

traveling home from work around 5:15 in the evening and stopped at a red light on

Haynes Bridge Road where it intersects Old Milton Parkway in Fulton County. As

she was stopped at the light, another vehicle hit her from behind. She described it as

just a “bump” and that the impact caused no damage to her vehicle. As the woman called police, the driver of the other vehicle, whom she identified as Hassard, had

“trouble getting out” of his vehicle. She explained that Hassard was “fidgeting and

stumbling” as he got out of his vehicle and that he balanced himself by holding on to

the door and the hood of his vehicle as well as her vehicle as he made his way toward

her. When Hassard tapped on her window, she rolled it down slightly. Hassard asked

the woman if she was “okay,” and the woman told him that police were on the way.

The woman explained that Hassard was “kind of slurring” and that she smelled

alcohol on his person.1 She asked the dispatcher to stay on the phone with her because

she believed Hassard was intoxicated. When she told Hassard that the dispatcher

advised that they pull off of the road, Hassard walked back to his vehicle. The woman

pulled her vehicle into a nearby parking lot and got out of her vehicle to wait for

Hassard, but Hassard drove away speeding after he saw her. The woman gave the

police dispatcher Hassard’s tag number and described his vehicle.

Within an hour of the incident, an investigating officer located Hassard’s

residence using information from his vehicle tag number. The officer left his business

card when no one answered the door. Hassard later called the officer and “admitted

1 In her written statement to police, the woman stated that Hassard “could hardly get out of his car,” and “seemed either drugged or drunk.”

2 to being involved in the hit-and-run.” The officer asked Hassard to come speak with

him and Hassard agreed. Shortly afterwards, however, the officer received a

voicemail message from Hassard stating that “he spoke with his attorney and he

would not be coming in to speak with me.” The officer then took out warrants for

Hassard’s arrest for following too closely and hit-and-run.

During further investigation, the officer discovered that Hassard had been in

a vehicle accident and charged for DUI less-safe in Gwinnett County about 54

minutes after the hit-and-run incident in Fulton County. He contacted the arresting

officer and obtained a report of the Gwinnett County incident. Based upon the

statement of the woman in the Fulton County hit-and-run incident, and his belief that

there was not enough time for Hassard “to stop at a location to consume enough

beverages to make him intoxicated between the [Fulton County] incident and [the

Gwinnett County] incident,” the officer took out a warrant for Hassard’s arrest for

DUI less-safe.

The officer that responded to the Gwinnett County incident testified that

Hassard had difficulty getting out of his vehicle, was unsteady on his feet and

swayed, was lethargic, didn’t respond to questions quickly, was “unsure of what was

going on,” used his vehicle for balance, had the “odor of alcohol about his breath,”

3 and that his eyes were “glassy and bloodshot.” A small bottle of vodka was found in

his vehicle. The Gwinnett County officer arrested Hassard for DUI less-safe.

Hassard subsequently pled guilty to DUI less-safe to the Gwinnett County

charge. After his plea, Fulton County charged Hassard by accusation with hit-and-

run, following too closely, driving under the combined influence of drugs and

alcohol, driving under the influence of a drug, less-safe, and driving under the

influence of alcohol, less-safe.

Hassard filed a plea in bar on double jeopardy grounds seeking to preclude his

prosecution for DUI less-safe in Fulton County. Prior to a bench trial, the trial court

denied Hassard’s plea in bar. Following the evidence presented at the bench trial, the

court found Hassard guilty of driving under the influence of alcohol to the extent he

was less safe and following too closely; it found him not guilty on the remaining

charges.

1. Hassard argues that the trial court erred in denying his plea in bar on double

jeopardy grounds.

The Double Jeopardy Clause of the Fifth Amendment, applicable to the states through the Fourteenth Amendment, states that no person shall be subject for the same offense to be twice put in jeopardy of life or limb. Brown v. Ohio, 432 U. S. 161, 164 (97 SC 2221, 53 LE2d 187) (1977).

4 See 1983 Ga. Const., Art. I, Sec. I, Par. XVIII. . . . It protects criminal defendants from three governmental abuses: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.

(Citation and punctuation omitted.) Williams v. State, 288 Ga. 7, 8 (2) (700 SE2d

564) (2010). “The Georgia constitutional and statutory protections against double

jeopardy also apply to multiple prosecutions or punishments for the ‘same offense’

or ‘same crime,’ to offenses arising from the ‘same conduct’ or ‘same transaction,’

and to ‘lesser included offenses.’” (Citations and punctuation omitted.) Shaw v. State,

225 Ga. App. 193, 194 (1) (483 SE2d 646) (1997). “The appellate standard of review

of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the

trial court’s oral and written rulings as a whole, the trial court’s findings support its

conclusion.” (Citations, punctuation and footnote omitted.) Alden v. State, 314 Ga.

App. 439, 440 (724 SE2d 451) (2012).

Here, Hassard’s plea in bar claims a violation of OCGA § 16-1-7. That Code

Section provides in relevant part:

(a) When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if:

5 (1) One crime is included in the other; or

(2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

(b) If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution. . . .

Hassard argues that the Fulton County DUI less-safe charge is barred because

“both the Fulton and Gwinnett County driving under the influence charges arose from

the same conduct.” This court has held that “[t]he term ‘same conduct’ is used

interchangeably with the phrase ‘same transaction.’ We also consider whether the

offenses at issue ‘arose out of one course of conduct.’” (Citations omitted.) Dean v.

State, 309 Ga. App. 459, 460 (711 SE2d 42) (2011).

Hassard relies on State v. Willis, 149 Ga. App. 509 (254 SE2d 743) (1979), to

support his argument that prosecution for DUI less-safe in the two different counties

arose out of the same conduct and is therefore barred by double jeopardy. But in

Willis, the defendant was arrested following a continuous high-speed chase that began

in Fulton County and ended in Cobb County. Id. This court held that the DUI charge

6 arose out of the same conduct of the defendant in both counties, and that therefore the

conviction in one county bars prosecution in another. Id. at 511 (3).

These facts are similar to those in Dean, supra. There, the defendant pled guilty

to DUI and following too closely after colliding with several vehicles as she drove

her vehicle a short distance down a road outside of, and then into, city limits. Dean,

supra, 309 Ga. App. at 460. She pled guilty to the county charges and then moved to

dismiss the city charges. Id. This court concluded that the defendant could not be

prosecuted for the city charges because all of the offenses arose out of one course of

conduct because “[t]here was no break in the action; she drove down the road,

colliding with cars and committing numerous traffic violations in two jurisdictions

until a final collision left her vehicle disabled.” Id.

Here, however, there were two separate courses of conduct. When Hassard

collided with the woman’s vehicle in Fulton County, he got out of his vehicle, walked

to her vehicle, had an extended conversation with her as she spoke with the police

dispatcher, got back into his vehicle and began to follow her to a parking lot, but then

drove away after driving back by the scene. Hassard collided with another vehicle in

Gwinnett County nearly an hour later. This evidence showed that at two different

times and in two different locations, Hassard drove under the influence of alcohol to

7 the extent he was less safe albeit on the same day. See Lefler v. State, 210 Ga. App.

609, 609-610 (1) (436 SE2d 777) (1993) (DUI and vehicular homicide prosecution

in Fulton County not barred where defendant hit a pedestrian in Fulton County but

was arrested and charged with DUI in Cobb County approximately four hours later).

Thus, Hassard’s actions in the Fulton County incident and his actions in the Gwinnett

County incident were neither the same transaction nor the same conduct as

contemplated by OCGA § 16-1-7 (a). Id. Jeopardy therefore did not attach, and the

trial court did not err in denying Hassard’s plea in bar.2

2. Hassard contends that the evidence was insufficient to sustain his conviction

for DUI less-safe because a lay witness testified that he appeared intoxicated and the

State did not show “that she had the requisite knowledge, experience or abilities to

make this determination.” He argues further that there was no evidence that he was

operating a vehicle while intoxicated in Fulton County, no field sobriety tests were

performed, and no witnesses testified that they observed him ingest alcohol.

2 To the extent Hassard contends that Lefler, supra, and OCGA § 16-1-7 (b) are unconstitutional as applied to him, his failure to raise such argument below waives the issue on appeal. See Gordian v. State, 261 Ga. App. 75, 77 (3) (581 SE2d 616) (2003).

8 Contrary to Hassard’s argument here, we have held that “[a] lay witness may

testify as to the intoxication of the defendant and the extent thereof where the witness

states the reasons for his opinion and shows that he did observe the defendant.”

(Citation and footnote omitted.) McKay v. State, 264 Ga. App. 726, 729 (2) (592

SE2d 135) (2003); see also Lawrence v. State, 157 Ga. App. 264, 264 (2) (277 SE2d

60) (1981) (“A witness who satisfactorily shows that he had opportunity to observe,

and did observe, the condition of another, may testify whether that person was under

the influence of intoxicants and the extent thereof, stating the facts upon which the

opinion is based.[Cits.]”).

Here, the woman testified that Hassard had trouble getting out of his vehicle,

was “fidgeting and stumbling,” had to balance himself by holding on to the hood of

the both vehicles, was “kind of slurring,” and smelled of alcohol. This witness stated

further that she believed Hassard was intoxicated, and that she had “come across

people under the influence of alcohol” many times in her life and that based on her

experience, Hassard’s demeanor matched that of others she had observed intoxicated.

This evidence, along with the evidence that Hassard “bump[ed]” the woman’s vehicle

while she waited at a red light and soon after fled the scene, was sufficient to support

9 the trial court’s finding that Hassard was under the influence of alcohol to the extent

he was a less safe driver. See McKay, supra; Lawrence, supra.

3. Hassard contends that the trial court erred in considering the Gwinnett

County incident as a similar transaction. Assuming without deciding that the

Gwinnett County incident was a similar transaction, Hassard posed no objection at

the bench trial to the testimony surrounding this incident and made no objection that

the trial court failed to hold a similar transaction hearing pursuant to Uniform

Superior Court Rule 31.3 (B). “To preserve an objection upon a specific ground for

appeal, the objection on that specific ground must be made at trial, or else it is

waived.” (Citation, punctuation and footnote omitted.) Scroggins v. State, 306 Ga.

App. 760, 762 (1) (703 SE2d 356) (2010); see Frazier v. State, 252 Ga. App. 627,

630 (3) (a) (557 SE2d 12) (2001) (we are bound to follow firm rule in Georgia

jurisprudence requiring trial objection on similar transaction evidence).

Judgment affirmed. Doyle, P. J. and Andrews, P. J., concur.