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Danley v. State

Court of Appeals of Georgia, Fifth Division

June 23, 2017

DANLEY
v.
THE STATE.

          MCFADDEN, P. J., BRANCH and BETHEL, JJ.

          Branch, Judge.

         On appeal from his conviction for driving under the influence (DUI) and with a suspended license, Leonard Danley, Jr., argues that the evidence was insufficient and that the trial court erred in some evidentiary rulings and in requiring him to admit the elements of DUI in order to receive a charge on justification. Danley also argues that trial counsel was ineffective. We find no error and affirm.

         "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." Reese v. State, 270 Ga.App. 522, 523 (607 S.E.2d 165) (2004) (citation omitted). 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, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979) (citation and emphasis omitted).

         So viewed, the record shows that on the early morning of February 8, 2014, Danley had been taking shots of whiskey with a couple at their home when he walked up behind the woman and put his hands underneath her shirt, moving them from her back toward her breasts. The victim immediately demanded that Danley leave the house; when he failed to do so, the victim's husband physically removed him. As the husband forced Danley toward Danley's car, the victim intervened. Danley then swung at the husband but missed, and the punch landed on the victim's face. When the victim told Danley that she was going to call the police, Danley struck her in the face a second time, got in his car, and drove away.

         Acting on two 911 calls from the victim's husband, who died before trial, a captain with the Douglas County Sheriff's Office observed a white Nissan Cube driving away from the location of the fight. The officer initiated a traffic stop, identified Danley as the driver, and observed that Danley appeared to be intoxicated. Less than one minute later, a deputy arrived to conduct a DUI investigation. The deputy noted that Danley smelled of alcohol and had slurred speech and bloodshot, watery eyes. Danley admitted to having consumed alcohol a hour earlier. With Danley's consent, the deputy performed horizontal gaze-nystagmus (HGN) and walk-and-turn tests. Danley exhibited all six clues on the HGN test, could not keep his balance during the walk-and-turn, and repeatedly put his hands in his pockets despite the deputy's instructions not to do so. An Alcosensor breath test was also positive.

         The deputy placed Danley under arrest for DUI, read him the implied consent warning, and asked for permission to test Danley's blood, which Danley refused. The deputy ran Danley's information and found that his driver's license was suspended as a result of a prior DUI conviction. The deputy then obtained and executed a search warrant as to Danley's blood, which showed a blood-alcohol concentration of 0.253, or more than three times the legal limit.[1]

         Danley was charged with sexual battery, battery, DUI per se and less-safe, and driving with a suspended license. The sexual battery charge was later dropped. At trial, Danley stipulated in writing that his license had been suspended in August 2012 and not reinstated before the incidents at issue; this stipulation was read to the jury. The State presented evidence including Danley's prior DUI conviction arising from events occurring on December 31, 2011, at which time Danley showed all six clues as to an HGN test, blew a positive alcosensor result, and refused a blood test.

         After the State rested its case, Danley sought to introduce the deceased husband's two 911 calls as well as a return call from the sheriff's department in which police, who were pursuing Danley, asked the husband about the direction in which Danley was driving away from the scene. After the State argued that the call from the sheriff's department to the husband took place after any emergency had come to an end, the trial court excluded this call as testimonial evidence and inadmissible hearsay. Danley then moved for a directed verdict on grounds including that the evidence was insufficient as to the battery charge and that the captain lacked probable cause to stop Danley. After explaining that Danley had waived any issue as to probable cause by failing to file a motion to suppress before trial, the trial court denied the motion for directed verdict.

         A jury acquitted Danley of the battery charge, but found him guilty of both counts of DUI and driving with a suspended license. The trial court merged the two DUI counts and sentenced Danley to 12 months with 150 days to serve. This appeal followed.[2]

         1.Our review of the record, including the evidence outlined above, shows that the evidence was sufficient to sustain Danley's conviction for DUI and driving with a suspended license.[3] See OCGA §§ 40-6-391 (a) (1), (5) (defining less-safe and perse DUI), 40-5-121 (defining offense of driving while license suspended or revoked); Jackson, supra; Daniel v. State, 298 Ga.App. 245, 246 (1) (679 S.E.2d 811) (2009) (evidence including defendant's blood-alcohol level of 0.235 shortly after an accident was sufficient to sustain less-safe and per-se DUI convictions).

         2.Danley argues that the trial court erred when it denied his motion for a directed verdict because officers did not have probable cause to stop or arrest him. As the trial court explained, however, Danley failed to move to suppress any evidence before trial, with the result that he waived any constitutional challenge to the admissibility of that evidence. Harkleroad v. State, 317 Ga.App. 509, 512 (1) (b), n. 9 (732 S.E.2d 278) (2012); see also Hatcher v. State, 224 Ga.App. 747, 748-749 (1) (482 S.E.2d 443) (1997) ("[f]ailing to file a timely motion to suppress amounts to a waiver of even constitutional challenges") (citation omitted). Further, the officers had authority to stop Danley's car on the basis of the husband's call and to arrest him for DUI when he exhibited evidence of impairment, including smelling of alcohol, showing six of six HGN clues, and blowing a positive breath test. See Jaffray v. State, 306 Ga.App. 469, 473-474 (3) (702 S.E.2d 742) (2010).

         3. Danley argues that the trial court erred when it excluded the call from the sheriff's department to the victim's husband from evidence as hearsay. We disagree.

         (a) Although Danley's trial took place in March 2016, Danley cites a single statute from the former Evidence Code, former OCGA § 24-2-4, [4] in support of his argument that it was "unfair" to exclude the third call. As a preliminary matter, we note that a citation to a statute which was not in effect at the time of the March 2016 trial at issue does not amount to effective legal argument. See Davis v. State, 299 Ga. 180, 192 (3) (787 S.E.2d 221) (2016) ("Georgia lawyers do this Court no favors - and risk obtaining reversible evidence rulings from trial ...


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