Yaseen Asabur Johnson v. State ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 24, 2021
In the Court of Appeals of Georgia
A21A0119. JOHNSON v. THE STATE.
DOYLE, Presiding Judge.
Following a bifurcated jury trial, Yaseen Asabur Johnson was convicted of
possession of a firearm by a convicted felon,1 failure to stop at an accident,2 and
driving without a license.3 Johnson moved for a new trial, and after he waived a
hearing on the matter, the trial court denied his motion. Johnson now appeals, arguing
that (1) there was insufficient evidence that the vehicle was attended to support his
conviction for failure to stop at an accident; (2) his driving record was improperly
admitted hearsay and/or he received ineffective assistance of counsel for failing to
1
OCGA § 16-11-131 (b).
2
OCGA § 40-6-270 (c).
3
OCGA §§ 40-5-20 (a), 40-5-121 (a).
properly object to its admission; and (3) the order of restitution was not supported by
the evidence. For the reasons that follow, we affirm in part and reverse in part.
Viewed in favor of the verdict,4 the record shows that on April 18, 2018, at
around 10:00 or 11:00 p.m., an officer responded to a call about a hit-and-run
accident. Although it was dark, the street was “well-lit” from street lights. The officer
observed a Ford Focus that was “pretty well damaged,” and he talked to Jacqueline
Harper, who had seen the vehicle driving on the road at a high rate of speed and then
hitting her vehicle, after which accident two men exited the Ford Focus and ran away.
The officer explained that Harper’s vehicle was parked on the side of the road, and
the Ford Focus had a “pretty brutal impact” with it, resulting in the Focus having to
be towed from the scene — “pretty much the engine was hanging out of it.” The
officer observed that Harper’s vehicle also appeared to be “totaled” and would, in his
opinion, require towing from the scene, but she did not have it towed while he was
there.
In the driver’s seat of the Ford, the officer found a work identification card for
Johnson, a .25 caliber handgun, and in the driver’s floorboard, a cellphone playing
4
See Johnson v. State, 279 Ga. App. 98, 99 (630 SE2d 612) (2006). See also
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
2
loud music. Harper also identified Johnson, whom she knew as “Yay Yay,” as the
driver of the vehicle, upon which information the officer prepared a warrant for
Johnson’s arrest. The officer ran Johnson’s name through the police computer system
to obtain his Georgia state identification number, which he ran through national and
state databases, resulting in the officer’s discovery of Johnson’s unlicensed status.
At trial, Harper testified, explaining that she was visiting her mother on the day
in question, and she had her two children with her. When the visit was ending, she
loaded up her car and had the car door open, when she saw a vehicle coming toward
her car at “a very high speed.” The vehicle collided with the front of hers, sending her
car back into a telephone pole, resulting in damage to the front and rear end of her
car. Harper testified that Johnson exited the driver’s side of the speeding vehicle and
another male exited the passenger side; although she did not know Johnson
personally, she knew “of him” through her older cousins, and she identified him in
the courtroom. Harper testified that it was “getting dark” at the time of the accident,
and she recognized Johnson. After the men ran away, she went over to the other
vehicle, and she saw an identification card and other things in the car.
3
Harper testified that although no one was in her vehicle when it was hit, her
finger was injured because her hand was on the car door, and she had to pay
approximately $1,000 for her insurance deductible to have her car repaired.
The State tendered into evidence certified copies of three of Johnson’s prior
convictions for driving without a license or driving with a suspended license. The
State also tendered a certified copy of Johnson’s driving history from the State of
Georgia Department of Driver Services (“DDS”), which listed his permit status as
“not licensed,” his “regular status” as “suspension (all),” and his “CDL Status” as
“suspension (all).”
Johnson moved for a directed verdict as to the charge of driving without a
license because the certified driving record was not properly authenticated and
because no one testified that he did not have a license at the time of the incident,
which motion the trial court denied. The jury was first presented with the charges of
failing to stop at an accident and driving without a license, for which they returned
guilty verdicts, finding specially that Johnson had been guilty of three prior driving
without a license convictions in the five prior years. Next, the jury was presented with
the charge of possession of a firearm by a convicted felon, in support of which the
4
State tendered Johnson’s prior felony conviction for possession of cocaine. The jury
returned a guilty verdict as to that charge as well.
1. Johnson argues that the trial court erred by denying his motion for new trial
because there was insufficient evidence that Johnson knowingly left the scene of an
accident with an attended vehicle, which requires the reversal of his conviction for
failure to stop at an accident.
In order to establish the violation of OCGA § 40-6-270 (a), the State must
show that the driver of a vehicle involved in an accident resulting in damage to
another “vehicle that is driven or attended by any person,” knowingly failed to stop
at the scene of the accident or “provide the driver of the other vehicle with certain
personal information, including his name, address, and vehicle registration number,
and to show his driver’s license.”5 Harper testified that her hand was injured from the
impact of the accident because her hand was on the door at the time. Thus, there was
sufficient evidence from her testimony for the jury to find that the vehicle was
“attended” at the time of the accident.6
5
State v. Sevostiyanova, 313 Ga. App. 729, 739 (14) (722 SE2d 333) (2012).
6
Compare with Melvin v. State, 225 Ga. App. 169, 171 (2) (483 SE2d 146)
(1997) (reversing conviction under OCGA § 40-6-270 because the complainant heard
the defendant hit her vehicle while she was inside her apartment, and no other
5
Although Johnson also contends that there was insufficient evidence to support
this verdict because Harper did not testify that Johnson turned around and saw her at
the vehicle prior to leaving the scene of the accident, it was not necessary for the
State to establish actual knowledge in order to establish beyond a reasonable doubt
that Johnson violated OCGA § 40-6-270 (a). “To prove the knowledge element of the
offense, it is not absolute and positive knowledge which must be shown, but rather
only that the circumstances were such that a reasonable person would have believed
that an accident had occurred resulting in death, damage[,] or injury to another.”7
Based on Harper’s and the officer’s testimony as to the severity of the crash and
Johnson’s behavior of running immediately from the scene, the jury was authorized
to find that a reasonable person would have believed that an accident occurred for
which he needed to stop and give his information.8 The jury was authorized to find
that had Johnson looked at the vehicle he had hit, he would have discovered that it
was attended by Harper, who was touching the vehicle when Johnson drove into it.
individual was in or near the complainant’s vehicle during the accident).
7
(Punctuation omitted.) Sevostiyanova, 313 Ga. App. at 739 (14), quoting
Dalton v. State, 286 Ga. App. 666 (650 SE2d 591) (2007).
8
See id.6
Accordingly, the trial court did not err by denying Johnson’s motion for new trial as
to this issue.
2. Johnson also argues that the trial court erred by admitting his driving history,
arguing that it was hearsay. A certified copy of Johnson’s driving history was
admitted into the record in two parts based on the objection of Johnson’s attorney.
And the second portion of the driving history did not go out with the jury, but was
submitted to the Court, which included an official notice of license suspension issued
to Johnson on February 6, 2018.
In its order denying his motion for new trial, the trial court relied on former
OCGA § 24-3-17 in order to uphold its determination that the State was permitted to
admit Johnson’s driving record because it was “a certified copy of a Department of
Public Safety [(“DPS”)] record.”9 This former statute is now codified in OCGA § 24-
9-924 (a):
9
Allman v. State, 258 Ga. App. 792, 794 (2) (575 SE2d 710) (2002). Former
OCGA § 24-3-17 stated that “(a) A certified copy of any record of the [DPS] or the
[DDS] or comparable agency in any other state is admissible in any judicial
proceedings or administrative hearing in the same manner as the original of the
record. (b) Any court may receive and use as evidence in any case information
otherwise admissible from the records of the [DPS] or the [DDS] obtained from any
terminal lawfully connected to the [GCIC] without the need for additional
certification of those records.”
7
Any court may receive and use as evidence in any proceeding
information otherwise admissible from the records of the [DPS] or the
[DDS] obtained from any terminal lawfully connected to the Georgia
Crime Information Center [(“GCIC”)] without the need for additional
certification of such records.
In this case, Johnson’s driving record was accompanied by the signature of an
official custodian of the DDS stating that it was “a true and correct copy of the
original as appears in the [DDS].” Thus, a proper foundation was laid for its
admission without the need for additional testimony.10 Here, no one testified to
obtaining the record, it was merely entered into evidence by the State, but because it
10
See Hann v. State, 292 Ga. App. 719, 723 (6) (665 SE2d 731) (2008)
(decided under former OCGA § 24-3-17), citing Allman, 258 Ga. App. at 794 (2)
(affirming conviction because the State introduced a certified copy of the driver’s
history in addition to testimony that the record was obtained from a computer
connected to the GCIC); Buckley v. State, 246 Ga. App. 342, 343 (540 SE2d 292)
(2000) (reversing because the State failed to establish that the GCIC driver’s history
was a certified copy or was obtained from a computer terminal lawfully connected to
the GCIC computer). Compare with Christian v. State, 329 Ga. App. 244, 247-248
(2) (764 SE2d 573) (2014) (explaining that this Court has “held that, pursuant to the
plain terms of [former OCGA § 24-3-17], the State presents a sufficient foundation
for the admission of GCIC printouts when it shows that the document was “obtained
from a computer terminal lawfully connected to the GCIC. And we have further held
that the State accomplishes this when a witness testifies to personally obtaining the
printouts from a GCIC terminal or identifies the printouts as having been obtained
from a specific GCIC terminal, but not when a witness merely testifies to obtaining
a printout from some other source or when the State only argues that a printout was
obtained from a lawfully connected terminal.”) (citations omitted).
8
was certified by the DDS official custodian, it was sufficient to meet the statutory
requirement. Moreover, the jury was authorized to find based on the statements in the
documents that Johnson was not licensed to drive in Georgia. Although Johnson
seems to argue that it was possible he was legally permitted to drive in Georgia at the
time of the accident, in the face of the documentary evidence, he offered only
speculative argument which was for the jury to accept or reject. Driving a vehicle is
not an activity for which all people of age automatically have authorization in which
to participate,11 and the evidence presented by the State supports the jury’s verdict
that Johnson was not authorized to drive at the time of the accident. Accordingly, this
enumeration is without merit.12
3. Johnson also argues that the trial court erred by sentencing him to restitution
without sufficient evidence of damage or injury. The State initially requested $1,750
in restitution, but reduced it to $1,000 based on Harper’s testimony. The sentencing
document in the record, however, establishes that no restitution was ordered but the
11
See Ward v. State, 188 Ga. App. 372, 373 (1) (373 SE2d 65) (1988) (“the
right to operate a motor vehicle upon the public highways of this State is a qualified
right which can be exercised only by obtaining a driver’s license from the State.”).
12
Johnson’s abundantly cautious argument that he received ineffective
assistance of counsel as to this issue is likewise without merit.
9
record was kept open for a hearing within six months. Although the record on appeal
has not been updated with a final amount of restitution,13 the trial court is not
authorized to order restitution for the conviction of leaving the scene of the
accident.14
Judgment affirmed in part and reversed in part. Reese and Brown, JJ., concur.
13
See, e.g., Neuman, __ Ga. ___, ___ (4) (b) (iv) (Case No. S20A1143, decided
Mar. 15, 2021) (“the burden is on the party alleging error to show it”) (punctuation
omitted), citing Roberson v. State, 300 Ga. 632, 636 (III) (797 SE2d 104) (2017);
Crawford v. State, 288 Ga. 425, 427 (2) (a) (704 SE2d 772) (2011) (“An appellant has
the burden of proving trial court error by the appellate record, and must compile a
complete record of what transpired in the trial court. Otherwise, there is not sufficient
information for an appellate court’s review and the trial court ruling enumerated as
error must be upheld. When a portion of the evidence bearing upon the issues raised
by the enumerations of error is not brought up in the appellate record so that this
court can make its determination from a consideration of it all, an affirmance as to
that issue must result.”) (punctuation omitted).
14
See, e.g., Zipperer v. State, 299 Ga. App. 792, 794 (2) (683 SE2d 865) (2009)
(explaining that a defendant’s “conviction for failure to stop after the collision could
not, as a matter of law, include restitution for damages that were not caused by her
failure to stop” — the failure to stop after the collision was not the cause of any
damage). Nor, in this case, would the defendant’s convictions for driving without a
license or being a felon in possession of a firearm support such an award. And to the
extent that the State argues that Johnson waived this argument, Zipperer establishes
that this argument is without merit. Id. at 794 (2) (“[E]ven though Zipperer’s counsel
waived a restitution hearing and stipulated to the amount of damage to the other
driver’s car, such actions do not waive appellate review of the legality of the
restitution order.”).
10