Opinion
A20A0293
05-28-2020
ALEXANDER v. The STATE.
Nicholas Earl White, Warner Robins, for Appellant. Samuel H. Altman, District Attorney, Kelly Jenkins Weathers, Assistant District Attorney, for appellee.
Nicholas Earl White, Warner Robins, for Appellant.
Samuel H. Altman, District Attorney, Kelly Jenkins Weathers, Assistant District Attorney, for appellee.
Dillard, Presiding Judge. Following trial by jury, Trivynski Alexander was convicted of felony fleeing and driving with a suspended license. On appeal, Alexander argues that (1) the evidence was insufficient to sustain his conviction for felony fleeing, and (2) the trial court erred by not granting a new trial using its discretion as the thirteenth juror. For the reasons set forth infra , we affirm. Viewed in the light most favorable to the jury's verdict, the record shows that, on the day in question, Alexander and the mother of his child, V. S., had a dispute at a Jefferson County convenience store. The altercation was witnessed by the store clerk, who was acquainted with V. S., and the clerk asked Alexander to leave the premises. V. S. remained in the store to speak with the clerk about the incident, and when she exited the store, the clerk saw Alexander pull V. S. into a car and heard her yell for help. Alexander then "sped off very dangerously" with V. S. in the vehicle.
See, e.g. , Fields v. State , 285 Ga. App. 345, 346, 646 S.E.2d 326 (2007).
During the commotion, a local law-enforcement officer noticed a disturbance at the convenience store from across the street. He then saw a car leave the parking lot of the store at a high rate of speed, at which point he immediately began to pursue the vehicle. And while following the vehicle, the officer observed the car traveling at 70 miles per hour in a 30 mile per hour residential zone. The officer then activated his blue lights after the car drove through a stop sign, at which point the vehicle further accelerated and sped through yet another stop sign. The car then went airborne at a large curve, landing in a deep ravine. A dashcam video, which was played at trial, caught footage of the brief chase and of V. S. emerging from the ravine, saying, "He tried to kill us, he said he was going to kill us both."
V. S. provided a written statement and informed police that Alexander forced her into the vehicle before speeding out of the parking lot of the convenience store. He then threatened to kill them both after the officer's blue lights activated, seconds before they crashed into the ravine. Later, at trial, V. S. reluctantly identified Alexander as the driver of the car, and the jury heard two recorded jail calls, in which Alexander threatened V. S. if she testified against him. V. S. also admitted that she attempted to refuse service and pleaded with the district attorney to dismiss the case. Additionally, the jury heard testimony regarding prior difficulties between Alexander and V. S. And ultimately, Alexander was convicted of felony fleeing and driving with a suspended license. He then filed a motion for new trial, which the trial court denied. This appeal follows.
1. Alexander claims that the evidence was insufficient to sustain his conviction for felony fleeing. We disagree.
When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. And in evaluating the sufficiency of the evidence, we do not "weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt." The verdict will be upheld, then, so long as "there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case." With these guiding principles in mind, we turn to Alexander's claim of error.
See English v. State , 301 Ga. App. 842, 842, 689 S.E.2d 130 (2010) (noting that following conviction, an appellant no longer enjoys a presumption of innocence).
Jones v. State , 318 Ga. App. 26, 29 (1), 733 S.E.2d 72 (2012) (punctuation omitted); see also Jackson v. Virginia , 443 U. S. 307, 319 (III) (B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (noting the relevant question is after viewing the evidence in the light most favorable to the prosecution, could any rational jury found the essential elements of the crime beyond a reasonable doubt).
Miller v. State , 273 Ga. 831, 832, 546 S.E.2d 524 (2001) (punctuation omitted); accord Westbrooks v. State , 309 Ga. App. 398, 399-400 (1), 710 S.E.2d 594 (2011).
Our analysis begins with the text of OCGA § 40-6-395 (a), which provides that
[i]t shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be
by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately
marked showing it to be an official police vehicle.
This offense is then elevated from a misdemeanor to a felony when a person, in addition to the foregoing,
(i) Operates his or her vehicle in excess of 20 miles an hour above the posted speed limit;
(ii) Strikes or collides with another vehicle or a pedestrian;
(iii) Flees in traffic conditions which place the general public at risk of receiving serious injuries;
(iv) Commits a violation of paragraph (5) of subsection (a) of Code Section 40-6-391 ; or
(v) Leaves the state[.]
And here, Alexander was indicted for felony fleeing in that he
willfully refuse[d] to bring his vehicle to a stop while fleeing a pursuing police vehicle operated by [an officer], said police vehicle being prominently marked and giving a visual signal, and the accused did drive at excessive speeds and did make dangerous maneuvers on residential roadways, which placed the general public at risk of receiving serious injuries [.]
(Emphasis supplied.)
Nevertheless, Alexander contends that he is, at most, guilty of misdemeanor fleeing because the State failed to prove that his maneuvers placed the general public at risk of receiving serious injury when there was no evidence that he was near any other motorist or person during the incident. But the jury heard testimony of the responding officer, who described how Alexander drove approximately 70 miles per hour in a 30 mile per hour zone, ignored stop signs, and eventually landed in a ravine. Further, the officer testified to passing at least one car on the road while attempting to catch up to Alexander's vehicle. Additionally, the jury was presented with the video from the officer's dashcam, which showed the car the officer passed while trying to catch up to Alexander's vehicle and that the chase occurred in a residential area. Thus, the jury members could decide for themselves whether Alexander drove in "traffic conditions which place the general public at risk of receiving serious injuries." Accordingly, this enumeration of error is without merit.
See Hinton v. State , 297 Ga. App. 565, 566 (1) (b), 677 S.E.2d 752 (2009) (affirming felony fleeing conviction when evidence showed that defendant "reached speeds in excess of 100 mph in a residential area" and "ran a stop sign and then jumped from the car while it was still in motion" before "the car struck a police cruiser, rolled across the roadway, and ran into a fence"). Cf. Hicks v. State , 321 Ga. App. 773, 774-75 (1), 743 S.E.2d 458 (2013) (reversing conviction for felony fleeing when the "transcript contains no testimony related to risk to the general public, and the video of the chase, as recorded by the camera mounted on the police cruiser, shows empty roadways containing no other vehicles or pedestrians during the pendency of the pursuit").
Cf. Cochran v. State , 288 Ga. App. 538, 540-41 (2), 654 S.E.2d 458 (2007) (holding that evidence was insufficient to support conviction for felony fleeing when the "State offered no evidence at trial of any traffic conditions and no evidence of any cars or pedestrians that may have been at risk due to [the defendant's] driving while he was fleeing from the officer").
See Hinton , 297 Ga. App. at 566-67 (1) (b), 677 S.E.2d 752 ("[T]he videotape from the pursuing police cruiser was played for the jury. The jury thus was able to view both [the defendant's] driving and the traffic conditions at first hand and determine from that evidence whether [the defendant] fled ‘in traffic conditions which placed the general public at risk of receiving serious injuries.’ " (punctuation omitted)).
2. Alexander also asserts that the trial court erred by not granting a new trial based on its discretion as the thirteenth juror. Again, we disagree.
For starters, Alexander waived this enumeration of error by failing to provide a citation to anything other than the most basic authority or any semblance of an argument. Indeed, Alexander's "argument" consists of one case citation preceded by the following sentence: "For the same reasons and law given under section 1 above, this Court should reverse the trial court under this enumeration of error." Suffice it to say, this is hardly the type of meaningful argument contemplated by our rules. But even if we were inclined to consider the merits of this contention, Alexander is unable to establish reversible error.
See, e.g. , Guilford v. Marriott Int'l, Inc. , 296 Ga. App. 503, 505, 675 S.E.2d 247 (2009) (deeming a claim of error abandoned when it was simply an assertion of error followed by a single case citation).
On a motion for new trial, even if the evidence is legally sufficient to sustain a conviction, the trial court may order a new trial as the thirteenth juror only if the "verdict of a jury is found contrary to evidence and the principles of justice and equity" or if the verdict is "decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding." Importantly, OCGA §§ 5-5-20 and 5-5-21 afford the trial court "broad discretion to sit as a ‘thirteenth juror’ and weigh the evidence on a motion for new trial alleging these general grounds." And in exercising discretion as the "thirteenth juror," the trial court must consider some of the things it cannot when "assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence." Even so, the trial court's discretion to grant a new trial under these circumstances "should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict." Furthermore, we presume, in the absence of affirmative evidence to the contrary, that the trial court "properly exercised its discretion [under] OCGA §§ 5-5-20 and 5-5-21." Nevertheless, when the record reflects that the trial court reviewed the motion for new trial "only for legal sufficiency of the evidence, the trial court has failed to exercise such discretion."
OCGA § 5-5-21.
Holmes v. State , 306 Ga. 524, 527 (2), 832 S.E.2d 392 (2019) (punctuation omitted); accord Walker v. State , 292 Ga. 262, 264 (2), 737 S.E.2d 311 (2013).
Wiggins v. State , 330 Ga. App. 205, 210 (c), 767 S.E.2d 798 (2014) (punctuation omitted); accord White v. State , 293 Ga. 523, 524 (2), 753 S.E.2d 115 (2013).
Wiggins , 330 Ga. App. at 210 (c), 767 S.E.2d 798 (punctuation omitted); accord White , 293 Ga. at 524-25 (2), 753 S.E.2d 115.
Holmes , 306 Ga. at 528 (2), 832 S.E.2d 392 (punctuation omitted).
Id. (emphasis added); see White , 293 Ga. at 525 (2), 753 S.E.2d 115 ("Nothing in the order of the trial court indicates to us that the trial court performed its ‘duty to exercise its discretion and weigh the evidence’ in its consideration of the general grounds.").
In this matter, Alexander explicitly argued in his motion for new trial that the jury's verdict was contrary to the principles of justice and equity and was strongly against the weight of the evidence. As a result, the trial court had "an affirmative duty to exercise its discretion and weigh the evidence to determine whether a new trial as to his convictions ... was warranted." And while the trial court repeatedly mentions the sufficiency of the evidence for the jury to convict beyond a reasonable doubt, it also appears to have exercised its independent discretion to weigh the evidence in consideration of the general grounds. Indeed, the trial court's order references the general grounds and indicates that it considered or reweighed the evidence presented at trial, thus suggesting that the court exercised its discretion under OCGA §§ 5-5-20 and 5-5-21.
Brockman v. State , 292 Ga. 707, 713 (4), 739 S.E.2d 332 (2013) (punctuation omitted) (emphasis supplied); see Lavertu v. State , 325 Ga. App. 709, 711 (1), 754 S.E.2d 663 (2014) (holding that "the law imposes upon the trial court an affirmative duty to exercise its discretion and weigh the evidence to determine whether a new trial is warranted" (punctuation omitted)); Hartley v. State , 299 Ga. App. 534, 540 (3), 683 S.E.2d 109 (2009) (same).
Cf. Whitmire v. State , 343 Ga. App. 282, 287-88 (2), 807 S.E.2d 46 (2017) ("A trial court does not ‘fulfill its duty to exercise its discretion when it applies the standard of review set out in Jackson v. Virginia to the statutory grounds for a new trial.’ "); Atkins v. State , 342 Ga. App. 849, 852 (2), 805 S.E.2d 612 (2017) ("The trial court denied the motion and in reaching its conclusion, acknowledged that [the defendant] sought a new trial based on general grounds. However, the trial court applied the sufficiency of the evidence standard outlined in Jackson v. Virginia , to deny her motion. This was in error because the standard of review for motions brought under OCGA §§ 5-5-20 and 5-5-21 goes to the weight, not the sufficiency, of the evidence presented. Nothing in the order suggests that the trial court performed its duty to exercise its discretion and weigh the evidence in its consideration of the general grounds for the motion." (punctuation and footnote omitted)); White , 293 Ga. at 525 (2), 753 S.E.2d 115 ("Nothing in the order of the trial court indicates to us that the trial court performed its duty to exercise its discretion and weigh the evidence in its consideration of the general grounds. Instead, its repeated statements that the evidence is sufficient to sustain the verdict denotes that the trial court failed to apply its discretion, as the determination if there is sufficient evidence to support the verdict is a matter of law, not discretion." (citation and punctuation omitted)).
Cf. Holmes , 306 Ga. at 528 (2), 832 S.E.2d 392 (vacating and remanding when "[t]he order made no reference to the general grounds, gave no indication that the trial court had considered or reweighed the evidence presented at trial, and did not suggest that the trial court had exercised its discretion pursuant to OCGA §§ 5-5-20 and 5-5-21").
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For all these reasons, we affirm Alexander's convictions.
Judgment affirmed.
Rickman and Brown, JJ., concur.