Gerren Smith v. State , 812 S.E.2d 117 ( 2018 )

SECOND DIVISION
MILLER, P. J.,
ANDREWS and SELF, 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.
http://www.gaappeals.us/rules
March 7, 2018
In the Court of Appeals of Georgia
A18A0800. SMITH v. THE STATE.
ANDREWS, Judge.
Following a stipulated bench trial based on proffered evidence, the State Court
of Fayette County found Gerren Smith guilty of driving under the influence of alcohol
to the extent he was less safe to drive, in violation of OCGA § 40-6-391 (a) (1). Smith
appeals his resulting conviction, arguing that the trial court erred in considering an
agreement he entered into during administrative license suspension (ALS)
proceedings. He also asserts that the State failed to prove venue. Although the trial
court properly considered the ALS evidence, we agree with Smith that the State
offered insufficient proof of venue. Accordingly, we reverse.
Viewed favorably to the verdict, see Mock v. State, 306 Ga. App. 93, 94 (701
SE2d 567) (2010), the evidence shows that a Fayette County Sheriff’s Deputy
stopped Smith in the early morning hours of November 25, 2015, for a tag-light
violation. While speaking with Smith, the deputy detected a heavy odor of alcohol
coming from Smith’s vehicle, and he noticed that Smith had bloodshot, glassy eyes
and droopy eyelids. Smith’s speech was also slurred, and the deputy smelled alcohol
on his breath. The deputy asked Smith to take part in several field sobriety
evaluations, but Smith declined, insisting that he had not been drinking. Based on the
physical manifestations exhibited by Smith, the deputy determined that he was an
impaired driver, placed him under arrest, and read him the Georgia implied consent
warning. Smith subsequently refused to give a breath sample for the state-
administered breath test.
1. Smith first argues that the trial court erred in considering evidence that,
during the ALS proceedings, he agreed with the arresting deputy to plead guilty to the
criminal DUI charge in exchange for dismissal of the deputy’s sworn report
supporting administrative suspension of his driver’s license. The agreement, which
was reflected in a consent “Motion to Dismiss Sworn Report” signed by Smith’s
attorney and the deputy, stated:
The dismissal of the Sworn Report is based upon [Smith’s] agreement
to enter a guilty plea to the underlying charge of violating OCGA § 40-
2
6-391 . . . . [Smith] further agrees that if [he] fails to enter the plea as
agreed, [Smith] waives [his] right to further contest the suspension under
OCGA § 40-5-67.1, and agrees to the entry of an order vacating the
Consent Order and an order suspending or disqualifying [his] driver’s
license, permit or privilege to operate a motor vehicle or commercial
motor vehicle in this state.
Based on the parties’ agreement, the judge presiding over the ALS proceeding
reversed the suspension of Smith’s license. Ultimately, however, Smith elected not
to plead guilty, and the criminal case proceeded. Prior to trial, the State sought
guidance on the admissibility of the ALS agreement, asserting that it amounted to an
admission by Smith. The trial court deemed the agreement admissible following a
hearing. We find no error.
Smith does not claim on appeal that the ALS agreement was fraudulent or
signed without his authority. In fact, he conceded below that his attorney was
authorized to enter the agreement on his behalf. Instead, Smith argues that evidence
of the agreement should have been excluded because it did not contain language
establishing that it would be admissible at his criminal trial if he failed to plead
guilty.
3
In support, Smith cites us to Flading v. State, 327 Ga. App. 346 (759 SE2d 67)
(2014), a DUI case in which we approved admission of a similar agreement reached
between the defendant and the arresting officer prior to the ALS hearing. Like the
agreement here, the Flading document set forth the defendant’s agreement to plead
guilty in exchange for dismissal of the officer’s sworn report supporting
administrative license suspension. It also provided: “The parties agree that a copy of
this [agreement] may be admitted into any subsequent legal proceeding involving the
charge as an admission by [the defendant] of [the defendant’s] guilt or nolo
contendere in exchange for the rescission of the administrative license suspension.”
Flading, supra at 348.
Noting that his agreement did not include the quoted language, Smith argues
that it should not have been considered at the bench trial. The Flading decision,
however, did not turn on this language. Rather, after determining that the defendant
had authorized his attorney to enter the stipulation, we found his election to “plead
guilty to DUI in exchange for the return of his driver’s license . . . relevant to, though
certainly not dispositive of, the charge that he was driving under the influence of
alcohol.” Flading, supra at 351 (2). We also concluded that any prejudice caused by
admission of the agreement did not outweigh its probative value. See id.
4
The same principles apply here. Smith does not dispute that he authorized his
attorney to enter the agreement, and he raises no claim of fraud or mistake. The
agreement is relevant to the underlying issue at trial – whether Smith drove under the
influence of alcohol to the extent he was less safe. See id.; OCGA § 24-4-401 (“[T]he
term ‘relevant evidence’ means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.”). And nothing indicates that
potential prejudice caused by the agreement outweighs its probative value.
Accordingly, the trial court properly considered this evidence at the bench trial. See
Flading, supra; see also Adams v. State, 344 Ga. App. 159 (809 SE2d 87) (2017)
(following Flading in case involving ALS stipulation that did not include language
regarding future admissibility of agreement).
2. We agree with Smith, however, that the State failed to present sufficient
proof establishing venue in Fayette County. In all criminal cases, the State must prove
venue beyond a reasonable doubt. See Tompkins v. State, 278 Ga. 857, 858 (1) (607
SE2d 891) (2005); see also OCGA § 17-2-2 (a) (“Criminal actions shall be tried in
the county where the crime was committed, except as otherwise provided by law.”).
Although a defendant may stipulate to venue, “the record must reflect that the
5
defendant expressly authorized such stipulation and that the stipulation was intended
to obviate the need for direct proof.” See Tompkins, supra. This is true even where,
as here, the defendant agrees to a bench trial based on proffered evidence. See id. at
858 (2).
We have not found – and the State has not cited – any evidence that Smith
stipulated to venue in Fayette County. Moreover, the State proffered no facts that
might otherwise support a venue finding. The evidence shows that Smith was stopped
on “Highway 138” while driving home from work at the Hyatt House Hotel. But
nothing links Highway 138 or the hotel to Fayette County. And although the arresting
deputy worked for the Fayette County Sheriff’s Department, his “county of
employment does not, in and of itself, constitute sufficient proof of venue to meet the
beyond a reasonable doubt standard.” Carter v. State, 320 Ga. App. 454, 457 (2) (740
SE2d 195) (2013) (citations omitted).
Because the State failed to prove venue, we must reverse Smith’s conviction
for driving under the influence of alcohol. The State, however, “may retry him
without violating the Double Jeopardy Clause if there was otherwise sufficient
evidence at trial to support” his conviction. Mock, supra at 97 (1) (b) (punctuation
omitted). The evidence proffered here, including Smith’s physical manifestations
6
during the traffic stop, his refusal to participate in field sobriety tests and the state-
administered breath test, and the agreement reached during the ALS proceeding,
authorized the trial court to conclude that Smith drove under the influence of alcohol
in violation of OCGA § 40-6-391 (a) (1). See Massa v. State, 287 Ga. App. 494, 495
(1) (651 SE2d 806) (2007) (“A defendant’s refusal to submit to field sobriety tests is
admissible as circumstantial evidence of intoxication and together with other
evidence would support an inference that he was an impaired driver.”); Alewine v.
State, 273 Ga. App. 629, 630 (1) (616 SE2d 472) (2005) (defendant’s erratic driving
and physical manifestations supported DUI conviction); Stephens v. State, 271 Ga.
App. 634, 635 (610 SE2d 613) (2005) (“[T]he refusal to submit to a blood alcohol test
created an inference that the test would reveal the presence of a prohibited substance
and bears directly on the issue of the sufficiency of the evidence.”). Retrial, therefore,
is permitted. See Mock, supra.
Judgment reversed. Miller, P. J., and Self, J., concur.
7