Krull v. State

Beasley, Presiding Judge,

dissenting.

“ ‘The jury is the sole and exclusive judge of the credibility of witnesses, and after verdict, a reviewing court must construe the evidence in favor of the judgment rendered. . . .’ [Cit.]” Harris v. State, 155 Ga. App. 530 (1) (271 SE2d 668) (1980); OCGA § 24-9-80. It may accept or reject all or any part of the testimony of any witness. Burke v. State, 196 Ga. 702, 707 (27 SE2d 313) (1943); Davis v. State, 205 Ga. 248, 254 (5) (53 SE2d 545) (1949). The jury is the arbiter of all conflicts in the evidence. Storey v. State, 205 Ga. App. 610, 611 (1) (422 SE2d 879) (1992). A conflict may arise not only when there is *41conflicting evidence but also when the facts testified to by a witness are at variance with the common knowledge and experience of mankind. See Watson v. State, 13 Ga. App. 181, 182 (2) (78 SE 1014) (1913). That is, the testimony may lack inherent credibility when measured against surrounding facts, either undisputed or as found by the jury.

In this case, the jury was authorized to reject the testimony of appellant’s father, that he had been driving the vehicle when it became disabled. It was authorized to reject as implausible his version of the event, that he left his son in the disabled auto at 4:00 a.m. in the middle of the highway (we do not have the benefit of the diagram the officer used to describe the location and the car’s position) and did not return until after the police and a wrecker came and left with his son and the car. The jury was also authorized to reject the defendant’s testimony that this is what occurred and his testimony that he was outside of the car when the officer arrived, not in the driver’s seat as the officer testified. It was authorized to reject his testimony that he had been out and had called an unnamed friend to come and help, a friend who did not testify. See Vaughn v. State, 126 Ga. App. 252, 263 (11) (190 SE2d 609) (1972).

Circumstantial evidence need only exclude reasonable hypotheses. Lowe v. State, 208 Ga. App. 49, 52 (1) (430 SE2d 169) (1993). The jury is the judge of what is reasonable. Burns v. State, 166 Ga. App. 766, 768 (3) (305 SE2d 398) (1983). In addition to it being undisputed that defendant was found drunk in the middle of a main road at 4:00 a.m. behind the wheel of a family vehicle, there is evidence that he refused to submit to the statutory breath test, never told the arresting officer that someone else was driving the vehicle, and approximately nine months earlier had driven on another main roadway while intoxicated, refused the implied consent test, and pleaded guilty. As to car keys, the officer was asked in connection with the inventory search of the vehicle prior to impound, “Did you see anybody else’s wallet or keys or anything like that in the car?” He answered that he did not. When asked where the car keys were for the subject vehicle, he replied, “I would have left the ignition key in the ignition for the wrecker driver.” He simply did not specifically “recall” that the key was in the ignition.

In addition to the jury’s verdict, the trial court denied the motion for new trial on the general grounds. Its role as the “thirteenth juror” further confirms the validity of the jury’s verdict. Ricketts v. Williams, 242 Ga. 303, 304 (248 SE2d 673) (1978); Pittman v. State, 44 Ga. App. 204, 205 (161 SE 155) (1931).

Viewed in a light most favorable to the verdict, the evidence was sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 *42(99 SC 2781, 61 LE2d 560) (1979).

Decided November 19, 1993. Bray & Johnson, H. Michael Bray, Christopher J. McFadden, for appellant. Paul L. Howard, Jr., Solicitor, Denise A. Hinds, Deborah W. Espy, Assistant Solicitors, for appellee. I am authorized to state that Judge Andrews and Judge Johnson join in this dissent.