THIRD DIVISION
MILLER, P. J.,
MCFADDEN, P. J., and MCMILLIAN, 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.
http://www.gaappeals.us/rules
February 23, 2017
In the Court of Appeals of Georgia
A16A1932. MONROE v. THE STATE.
MCFADDEN, Presiding Judge.
After a jury trial, Thomas Roy Monroe was convicted of driving under the
influence of alcohol to the extent that he was a less safe driver, speeding, failure to
maintain lane, and driving while possessing an open container of an alcoholic
beverage. Monroe appeals his convictions, arguing that the evidence does not support
them; that the trial court erred by admitting evidence of his prior DUI conviction; that
the trial court erred by allowing the state to introduce certain demonstrative evidence;
and that the trial court should have excluded testimony about an open container of
what appeared to be an alcoholic beverage found in his car.
We find that the evidence was sufficient and that Monroe has not shown
reversible error in the admission of his prior conviction, the demonstrative evidence,
or the testimony about the open container. So we affirm Monroe’s convictions.
1. Sufficiency of the evidence.
“On appeal from a criminal conviction, the defendant no longer enjoys a
presumption of innocence, and we view the evidence in a light favorable to the
verdict.” Coleman v. State, 284 Ga. App. 811, 812 (1) (644 SE2d 910) (2007)
(citation omitted). So viewed, the evidence showed that at 3 a.m. on May 9, 2013, a
sergeant with the Gwinnett County Police Department pulled over Monroe’s car for
speeding and for failing to maintain his lane. The car was traveling at a rate of 65 to
70 miles per hour, while the speed limit was 45 miles per hour, and the sergeant had
seen Monroe twice drift over his lane line. The sergeant immediately smelled an odor
of alcohol coming from inside the car. The sergeant believed that Monroe was
intoxicated to the point where he was an unsafe driver.
The sergeant called for another officer to take over the investigation. That
officer observed six out of six clues of impairment in his horizontal gaze nystagmus
evaluation of Monroe. He also smelled the odor of an alcoholic beverage coming
from Monroe’s mouth and observed that Monroe’s speech was somewhat slurred.
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Monroe did not participate in the walk-and-turn and one-leg stand evaluations,
explaining that he had been in a car accident. He refused to submit to a breath test
after the officer had read him his implied consent rights. Based on Monroe’s driving
as well as the horizontal gaze nystagmus evaluation, the officer arrested Monroe for
driving under the influence of alcohol. After Monroe’s arrest, the sergeant searched
Monroe’s car and found a glass filled with ice and a dark liquid that smelled like an
alcoholic beverage.
This evidence was sufficient for the jury to find beyond a reasonable doubt that
Monroe was guilty of driving under the influence of alcohol to the extent that he was
a less safe driver, speeding, failure to maintain lane, and driving while possessing an
open container of an alcoholic beverage. OCGA §§ 40-6-391 (a) (1); 40-6-181; 40-6-
48 (1); 40-6-253 (b); Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)
(1979).
2. Prior DUI conviction.
Monroe argues that the trial court erred by admitting evidence of his prior DUI
conviction. The trial court admitted the evidence both under OCGA § 24-4-417 (a)
(1) on the ground that it was relevant to prove knowledge and under OCGA § 24-4-
404 (b) on the ground that it was relevant to show his intent.
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First, Monroe argues that OCGA § 24-4-417 (a) (1) is unconstitutionally vague.
But Monroe has failed to point to any place in the record where the trial court
distinctly ruled on his constitutional challenge. Therefore, the constitutional challenge
was not preserved for appeal. See Focus Entertainment Intl. v. Bailey, 256 Ga. App.
283, 284 (568 SE2d 183) (2002).
Monroe also argues that admission of this evidence violated his Fifth
Amendment right not to incriminate himself. He seems to argue that if the evidence
of his prior DUI conviction was admissible to prove knowledge or intent, then its
admission required him to testify to explain his lack of knowledge or intent. But
Monroe
cites no authority to support his argument that adverse evidence must be
excluded because its admission might impact a defendant’s decision to
testify. To the contrary, even if [Monroe] was forced to choose between
asserting a defense based upon his own testimony or remaining silent,
that is a choice that is inherent in any defendant’s decision whether to
testify or not, and that does not violate a defendant’s constitutional
rights.
Whitman v. State, 316 Ga. App. 655, 660 (729 SE2d 409) (2012) (citations and
punctuation omitted).
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Monroe claims that the admission of his prior DUI conviction amounted to
double jeopardy. But he failed to support this claim with citation of authority or
argument and thus has abandoned it. Court of Appeals Rule 25 (c) (2). In any event,
double jeopardy “prevents successive prosecutions for the same offense[;] it does not
prevent prosecutions for offenses which are separate and similar to a prior prosecuted
offense.” Loden v. State, 199 Ga. App. 683, 689 (6) (406 SE2d 103) (1991) (citations
omitted; emphasis in original).
Monroe argues that the trial court erred in admitting his prior DUI conviction
under OCGA § 24-4-417 (a) (1) as relevant to prove knowledge and under OCGA §
24-4-404 (b) as relevant to prove intent. He argues that the fact he was previously
convicted of DUI is not relevant to his knowledge or intent. We disagree.
OCGA § 24-4-417 (a) (1) provides in pertinent part that in DUI prosecutions,
evidence of the commission of another DUI “on a different occasion by the same
accused shall be admissible when: (1) [t]he accused refused in the current case to take
the state administered test required . . . and such evidence is relevant to prove
knowledge . . . .” (emphasis added). The statute “contains a presumption in favor of
the admission of [such] evidence.” State v. Frost, 297 Ga. 296, 302 (773 SE2d 700)
(2015) (citation omitted). Proof of Monroe’s prior DUI conviction could strengthen
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the inference that the fact-finder could draw from Monroe’s refusal to take the state-
administered test this time, that had he done so, it would have shown the presence of
alcohol. Id. at 304. “This is so because . . . it might properly be inferred from evidence
of prior occasions on which the accused had driven under the influence that the
accused had an awareness that his ingestion of an intoxicant impaired his ability to
drive safely.” Id. Monroe has not shown that the trial court abused his discretion in
finding that the prior DUI was relevant to prove knowledge. And because the
statutory conditions obtained, the court did not err in admitting the prior DUI under
OCGA § 24-4-417 (a) (1).
Nor has Monroe shown that the trial court erred in admitting his prior DUI
conviction under OCGA § 24-4-404 (b) as relevant to show intent. State v. Jones, 297
Ga. 156 (773 SE2d 170) (2015). “[B]ecause the same state of mind was required for
committing the prior act and the charged crime[], i.e., the general intent to drive while
under the influence of alcohol, evidence of [Monroe’s] prior conviction was relevant
under Rule 404 (b) to show [his] intent on this occasion.” Jones, 297 Ga. at 160-161
(2) (citations and footnote omitted). Monroe has not shown that the trial court clearly
abused his discretion in admitting this evidence under OCGA § 24-4-404 (b). Id. at
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159 (1) (citations omitted) (“A trial court’s decision to admit other acts evidence will
be overturned only where there is a clear abuse of discretion.”).
3. Demonstrative evidence.
Monroe argues that the trial court erred by allowing the state to admit certain
demonstrative evidence: video clips showing three types of horizontal gaze
nystagmus. The state introduced the video clips to show the jury what nystagmus
looks like while the arresting officer was testifying about conducting the horizontal
gaze nystagmus evaluation of Monroe. The officer testified that Monroe demonstrated
all three types of nystagmus shown in the video clips.
Demonstrative evidence . . . must be relevant, see OCGA § 24-4-401,
and it may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence, see OCGA § 24-4-403.
Demonstrations are also subject to the reasonable control of the trial
court. See OCGA § 24-6-611.8
Smith v. State, 299 Ga. 424, 434-435 (3) (b) (788 SE2d 433) (2016) (footnote
punctuation omitted). The trial court has wide discretion to admit demonstrative
evidence, and
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[t]he burden is on the party offering [demonstrative evidence] to lay a
proper foundation establishing a similarity of circumstances and
conditions. Although the conditions of the demonstration need not be
identical to the event at issue, they must be so nearly the same in
substantial particulars as to afford a fair comparison in respect to the
particular issue to which the [demonstrative evidence] is directed.
Further, experimental or demonstrative evidence, like any evidence
offered at trial, should be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.
Id. at 435 (3) (b) (citation and punctuation omitted). Here, the officer’s testimony
made clear that the video clips were not of Monroe, but that in the “substantial
particulars,” the conditions of the video clips and his observations of Monroe were
similar: both showed the same kind of nystagmus. Monroe has not shown that the trial
court abused his discretion in admitting this demonstrative evidence.
4. Open container.
Monroe argues that the trial court erred by allowing the sergeant and arresting
officer to testify that they observed in Monroe’s car an open container that was full
of ice cubes and a dark liquid with the distinct odor of alcohol. He argues that the
testimony was inadmissible because the state did not preserve the actual open
container. He cites State v. Miller, 287 Ga. 748 (699 SE2d 316) (2010), which
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concerns “the proper standard for analyzing whether the destruction of potentially
exculpatory evidence rises to a violation of due process.” Id.
In determining whether the state’s failure to preserve evidence which might
have exonerated the defendant amounts to a constitutional violation,
a court must determine both whether the evidence was material and
whether the police acted in bad faith in failing to preserve the evidence.
To meet the standard of constitutional materiality, the evidence must
possess an exculpatory value that was apparent before it was destroyed,
and be of such a nature that the defendant would be unable to obtain
comparable evidence by other reasonably available means.
Id. at 754 (citation omitted). A claim based on the state’s destruction of evidence “can
be successful only if [Monroe] shows that the evidence was material and that the
police acted in bad faith in failing to preserve it.” Doyal v. State, 287 Ga. App. 667,
671 (6) (653 SE2d 52) (2007) (citation and punctuation omitted; emphasis added).
Pretermitting whether the open-container evidence possessed an apparent exculpatory
value so as to make it constitutionally material, Monroe has not shown that the police
acted in bad faith in failing to preserve it. Id. Cf. Champion v. State, 260 Ga. App. 12,
14-15 (2) (579 SE2d 35) (2003) (rejecting contention of accountant charged with
“manipulation of deposit records” to facilitate stealing cash that lost financial records
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were material because they “would have shown that certain expenses were paid in
cash and thereby explained the missing money”). So he has not shown that the trial
court erred by allowing the officers to testify about this evidence.
Judgment affirmed. Miller, P. J., concurs. McMillian, J., concurs fully in
Divisions 1,2, and 3, and in the judgment only as to Division 4.
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