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Pefinis v. State

Court of Appeals of Georgia, First Division

February 1, 2018



          Barnes, Presiding Judge.

         Peter Pefinis, Jr. was indicted on two counts of serious injury by vehicle, driving under the influence less safe (drugs), and reckless driving. Following a jury trial, Pefinis was found guilty of one count of serious injury by vehicle and reckless driving. The two counts were merged for sentencing, and Pefinis was sentenced to fifteen years, to serve ten. Following the denial of his motion for new trial, as amended, he appeals and contends that the evidence was insufficient and that trial counsel was ineffective. Following our review, we affirm.

         1. Regarding Pefinis' contention that the evidence was insufficient to sustain his convictions,

[o]n appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

(Citation and punctuation omitted.) Hall v. State, 335 Ga.App. 895 (783 S.E.2d 400) (2016).

         So viewed, the facts pertinent to this appeal demonstrate that on October 8, 2010, the victim was driving westbound on a two-lane curved stretch of Bankhead Highway in Douglas County when she observed a red van, later determined to be driven by Pefinis, drift across the road into her lane "like he was changing lanes." According to the victim, "it's as though he didn't turn and follow the curve, he just went into [her] lane." The van was approximately "eight or nine car lengths" in front of her, and when it did not change its course but "kept coming at [her]" while "still in [her] lane, " the victim believed that she had "to get out of the way" to avoid a collision. As she attempted to avoid Pefinis' van by crossing into the eastbound lane to pull into the driveway of a gas company, Pefinis crossed back into the eastbound lane and struck the victim's car.

         An investigator with the Douglas County Sheriff's Office testified that based on his investigation, it appeared that "[t]he [victim's] car was coming westbound . . . and the red van [was] coming from the eastbound side. But with these marks going across the road and the area of impact. . ., it appears that the red van was in this lane . . . going . . . eastbound in the westbound lanes." A witness driving behind the victim in the same lane also testified that when Pefinis's car approached the curve "he [didn't] turn at all. He just comes straight" into the westbound lane. She further testified that as Pefinis' van traveled in their lane, "[w]e didn't know if he was asleep, if he'd wake up [.]"

         Pefinis and the victim both sustained severe injuries and were transported by ambulance to an area hospital.[1] The victim was hospitalized for almost two months and suffered severe injuries, including fractures of the right tibia, ankle, pelvis, left wrist and knee, and internal injuries, resulting in a bowel resection, and the removal of the victim's appendix and gallbladder. The victim received physical and occupational therapy to learn to walk again, but she was not able to resume teaching dance because of her wheelchair restrictions.

         The intake nurse at the emergency room testified that Pefinis told her that on the day of the crash he had taken methadone, a medication that could cause drowsiness and "impair [his] ability to operate and automobile, "[2] On November 10, 2011, Pefinis provided police with a recorded statement about the crash, and the officer testified that Pefinis said that he had not taken methadone on the day of the crash, but provided the officer with a prescription he had for Xanax, which Pefinis said that he had taken earlier that day.[3] On January 22, 2012, following his indictment and the issuance of an arrest warrant, Pefinis gave police a second recorded statement, after which he was arrested.[4]

         OCGA § 40-6-390 (a) provides that "[a]ny person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving."[5] And, "[w]hoever, without malice, shall cause bodily harm to another by depriving him of a member of his body, by rendering a member of his body useless, by seriously disfiguring his body or member thereof . . . through the violation of Code Section 40-6-390 . . . shall be guilty of the crime of serious injury by vehicle." OCGA § 40-6-394.[6]

         Although Pefinis contends that the evidence demonstrated that the collision was accidental rather than reckless, it is the role of the jury, not this Court, to "determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence." (Punctuation omitted.) Harris v. State, 332 Ga.App. 789, 790-91 (1) (775 S.E.2d 165) (2015). Here, the jury resolved those conflicts against Pefinis. See Brock v. State, 293 Ga. 156, 157-58 (1) (743 S.E.2d 410) (2013) ("It is the jury's role to assess the credibility of witnesses and resolve any inconsistencies in the evidence."); Moss v. State, 209 Ga.App. 59, 60 (1) (432 S.E.2d 825) (1993) ("Whether the injuries sustained by the victims were caused through appellant's violation of any subsection of OCGA § 40-6-391 (a) was a question of fact for the jury. This fact, like any other fact, may be established by circumstantial evidence.") In this case, the evidence was sufficient to support Pefinis' convictions under the standard established in Jackson v. Virginia, 443 U.S. at 319 (III) (B).

         2. Pefinis also contends that trial counsel was ineffective for failing to advise him that by not testifying he was forfeiting a jury charge on accident. The record reflects that Pefinis requested a charge on accident, and asserted that it was an affirmative defense supported by the evidence at trial. The State argued that Pefinis was not entitled to the charge unless he had testified and admitted to committing the offense, and that he had not done so, instead maintaining that he did not remember what happened and had not driven recklessly. The trial court denied the charge on accident, appearing to find that it was not warranted by the evidence.

[T]o obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel's performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. To establish deficient performance, a defendant must show that counsel's performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. In considering adequacy of performance, trial counsel ...

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