Graves v. State , 227 Ga. App. 628 ( 1997 )

Eldridge, Judge.

Pursuant to a bench trial in the City of Atlanta Traffic Court, Fulton County, Raymond Graves was found guilty of driving with a suspended license, no proof of insurance, and improper U-turn. His sole enumeration of error is that the State failed to prove beyond a reasonable doubt that venue was proper in the City of Atlanta, Fulton County, as opposed to the City of Atlanta, DeKalb County.

This issue was not raised either before or during trial. Further, absolutely nothing in the record supports the notion that a challenge to venue was forthcoming in appellant’s motion for directed verdict so as to predicate an assumption, apparently made by the dissent, that appellant did not “voluntarily” waive such issue; even appellant does not contend that the trial court’s abrupt ruling on his motion for directed verdict cut short a venue challenge.¹ Moreover, appellant has not and does not herein contend that venue was improper in Fulton County. Instead, appellant’s argument is that, while venue may very well have been proper in Fulton County, the State failed to prove it. Held:

Although appellant failed to preserve this issue by timely objection in the court below, this Court has, in the past, reached this issue through an analysis of the “sufficiency of the evidence” to support the verdict. While the propriety of such analysis as applied to a procedural evidentiary issue such as proof of venue may appear questionable, when a sufficiency analysis is employed, this Court examines the entire record in order to evaluate the sufficiency of the evidence to support the verdict. See Saldona v. State, 219 Ga. App. 762 (466 SE2d 655) (1996); Teasley v. State, 207 Ga. App. 719 (429 SE2d 127) (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 775 (479 SE2d 125) (1996); Morris v. State, 205 Ga. App. 650 (423 SE2d 54) (1992); Hunsucker v. State, 160 Ga. App. 846, 847 (2) (287 SE2d 689) (1982); Dukes v. State, 151 Ga. App. 312, 313 (259 SE2d 706) (1979); see also OCGA § 5-6-36 (a).

The record in the case before us contains three Uniform Traffic Citations (“UTCs”) which were sworn to by the arresting officer and signed by him under oath before a magistrate on the incident date, July 11, 1996. The UTC is an affidavit that may serve as the formal prosecuting instrument for a misdemeanor traffic offense before the trier of fact, and the UTC “alone would suffice to prosecute a traffic violation.” Evans v. State, 168 Ga. App. 716, 717 (310 SE2d 3) (1983); McCann v. State, 158 Ga. App. 202 (279 SE2d 499) (1981). Although, for the sake of expediency, our legislature has provided that a UTC may serve the same function as an indictment or accusation, a UTC is not, as contended by the dissent, “like” either of these instruments of prosecution: an accusation or indictment is drawn by the solicitor or district attorney respectively, neither of whom is a witness to the incident in question so as to testify at trial regarding the facts thereof. See, e.g., Brown v. State, 82 Ga. App. 673, 676-677 (62 SE2d 732) (1950) (accusation founded upon affidavit of the prosecutor); Smith v. State, 138 Ga. App. 692 (227 SE2d 468) (1976) (traffic offense prosecuted upon the solicitor’s accusation); cf. State v. Doyal, 184 Ga. App. 126 (361 SE2d 17) (1987); Evans, supra at 717. A UTC, on the other hand, contains the sworn affidavit of the witness arresting officer and does not become “transformed” into an accusation or indictment when used as a vehicle for prosecution; its contents remain the same.²

On the face of the UTCs in the case sub judice, the State’s witness, arresting officer Smail, “being duly sworn upon his oath, deposes and states that he has just and reasonable grounds to believe, and does believe,” that appellant committed the offense as set forth in the UTC in the City of Atlanta, Fulton County. The UTCs were then filed with the clerk of court the day after the incident, July 12, 1996. See Ghai v. State, 219 Ga. App. 479 (465 SE2d 498) (1995).

On September 5, 1996, the appellant opted for a bench trial in the City of Atlanta Traffic Court. The trial court heard evidence from Officer Smail, who testified that the offenses occurred in the City of Atlanta. Further, the trial court had the UTCs before it as a part of the court’s record; the UTCs established that the offenses occurred in Fulton County. Appellant made no objection to venue as being in Fulton County, and no conflicting evidence was presented at trial or is present in the record before us.

In a bench trial, certain evidentiary allowances are made that differ from a jury trial. For example, it is well settled that in a bench trial, the court has broader discretion in admitting evidence than in cases where a jury is involved. Davis v. State, 189 Ga. App. 412 (376 SE2d 421) (1988); Milner v. State, 163 Ga. App. 827 (296 SE2d 360) (1982). When the judge sits as the trier of fact, it is presumed that he will consider only legally admissible evidence. Bailey v. State, 219 Ga. App. 258, 261 (465 SE2d 284) (1995). Further, and most importantly in the case sub judice, a trial court may take judicial notice of its own records for evidentiary purposes in a case, either civil or criminal, that is pending before it. OCGA § 24-1-4; Petkas v. Grizzard, 252 Ga. 104 (312 SE2d 107) (1984). From the trial court’s and the parties’ references to the contents of the UTCs and the judge’s signature on the backs thereof, it is apparent that such judicial notice was taken. In the Interest of G. G., 177 Ga. App. 639 (341 SE2d 13) (1986) (judicial notice need not be invoked or announced); see also Petkas, supra; Walker v. McLarty, 199 Ga. App. 460, 461 (405 SE2d 294) (1991). As such, evidence was before the trial court establishing venue in Fulton County, even if this evidence may be deemed “slight.” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988); Aldridge v. State, 236 Ga. 773, 774 (225 SE2d 421) (1976).

With regard to judicial notice of the UTCs, the dissent argues that “the mere fact that it [UTC] is in the court’s record does not mean the trial judge may use it as evidence at a bench trial.” This position is not well taken in light of the holding of the Supreme Court in Petkas v. Grizzard, supra. Contrary to the assertions of the dissent, in Petkas v. Grizzard, the trial court did not simply take judicial notice that “a pleading had been filed”-, in taking judicial notice of the-prior record, the content of the former pleadings, as well as the dispositions thereof, were necessarily considered by the trial court for a determination of the rights of the parties pursuant to the renewal statute, OCGA § 9-2-61. This Court reversed the trial court, espousing a position not unlike that of the dissent’s herein in which this Court held: “[T]he trial court may not take judicial notice of the record in another case in the same court, without its formal introduction in evidence. . . . [T]he trial judge may not take judicial notice of the prior case.” (Citations omitted; emphasis in original.) Grizzard v. Petkas, 167 Ga. App. 254, 256-257 (305 SE2d 861) (1983). The Supreme Court reversed this Court, finding “a trial court may take judicial notice of records in the same court.” Petkas v. Grizzard, supra at 108. Petkas “recognizes that judicial notice relates to matters of fact, not law, that judicial notice is a substitute for conclusive evidence.” Mumford v. Davis, 206 Ga. App. 148, 149 (424 SE2d 306) (1992). Even before Petkas, a trial court could substantively take judicial notice of the record in the immediate proceeding before it. State v. Brinson, 248 Ga. 380 (283 SE2d 463) (1981). Over the years, this principle has been applied repeatedly to cases, both criminal and civil, regarding the substance of the record before the trial court.³ Because the UTCs were part of the record before the'trial court in the case sub judice, judicial notice of the contents thereof was proper.

Further, the dissent expresses concern that, in taking judicial notice of the contents of a UTC, a “trial judge conducting a bench trial on a felony indictment need not hear any testimony; rather he may simply read the indictment to determine what crime the defendant has committed.” With respect, the dissent’s apprehension is simplistic. Taking judicial notice of the contents of a UTC in a bench trial will not be dispositive of all issues and will not enable the State to prosecute an accused without introducing the testimony of a police officer. This is so because a defendant’s plea of “not guilty” asserts the. presumption of innocence as to the charged offenses, thereby raising: contradictory assertions and conflicts as to the elements of those crimes asserted in the UTC. This gives rise to the State’s evidentiary burden and the necessity for sufficient proof thereon beyond a rea-: sonable doubt. However, a “not guilty” plea as to the crimes raises no such conflicts and concerns with regard to the procedural issue of venue. That is why “slight evidence” has always been sufficient as to venue where no contradictory evidence or assertions are presentj Again contrary to the position taken by the dissent, when taking judicial notice of a fact contained in the record, about which fact there is no controversy or contradiction, the trial court is not required to make “any judgment about the truth of the factual allegations contained in that pleading.” Accordingly, in the instant case, the affidavit containing the sworn testimony of the arresting officer in the UTCs, without contradiction or conflict, is sufficient “slight evidence” to prove the undisputed fact of venue contained therein.

In addressing additional concerns expressed by the dissent, it is argued that the UTCs were inadmissible as hearsay. A UTC is obviously not “hearsay” when the officer/affiant testifies at trial. The concerns of the rule against hearsay are satisfied where the witness whose veracity is at issue is present at trial, under oath, and subject to cross-exaniihation. Sanders v. State, 182 Ga. App. 581, 585 (5) (356 SE2d 537) (1987); see also White v. State, 213 Ga. App. 429 (445 SE2d 309) (1994). The. appellant had copies of the UTCs before him and was free to cross-examine Officer Smail on the contents thereof. See Miller v. State, 266 Ga. 850, 856 (7) (472 SE2d 74) (1996) (“ Affidavits of absent witnesses cannot be admitted in evidence at criminal trials because doing so violates the right of defendants to confront witnesses against.them.’ ” (Emphasis supplied)).

Further, it is argued that the UTCs were inadmissible as. improperly authenticated. The dissent contends that the UTCs were not “certified under seal” pursuant to OCGA § 24-7-21 and cites King v. State, 194 Ga. App. 69, 71 (5) (389 SE2d 500) (1989), for this view. This view is Wiong. In King, supra, the document at issue was a prior conviction for DUI, which had been certified by a notary public, not the court clerk as required by statute. The UTCs in this case came before the trial court within the court clerk’s file. It is hard to imagine how much more “under seal by the clerk” a document can get. See also Elliott v. State, 253 Ga. 417, 420 (3) (320 SE2d 361) (1984); Locklear v. State, 131 Ga. App. 536, 537 (6) (206 SE2d 527) (1974).

Next, the dissent contends that this Court cannot consider the UTCs as part of the “entire record” in a sufficiency of the evidence analysis because the UTCs were “never admitted into evidence.” However, the trial court took judicial notice of the UTCs, and neither a trial court nor this Court need take judicial notice of material which has been admitted into evidence in a case. Consideration of a fact “without the introduction of proof” is the whole point of taking judicial notice. OCGA § 24-1-4; see, e.g., Talley v. State, 200 Ga. App. 442, 443 (408 SE2d 463) (1991); Kelleher v. State, 187 Ga. App. 811 (371 SE2d 450) (1988) (Beasley, J., concurring). Moreover, regardless of whether material has been formally admitted into evidence or not, if such was considered by the trier of fact in reaching a decision as to a defendant’s guilt, the material is necessarily a part of this Court’s sufficiency of the evidence analysis. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Finally, the dissent contends that, even if the UTCs were subject to judicial notice, they could not establish venue because the UTCs “do not clearly show in which county the offenses occurred.” The dissent points out that Officer Smail completely and totally encircled the word “Fulton” on each citation as the county in which the incident occurred; however, the officer’s freehand circle caught part of the “D” and a little of the “E” in the word “DeKalb,” which appeared as an option next to “Fulton.” The dissent refers to this as “vague and unexplained markings,” and claims a deprivation of due process in the inability to cross-examine Officer Smail on the true meaning thereof. We make two observations: (1) It is quite possible the dissent might be overestimating a trier of fact’s tolerance for cross-examinations of such painfully little merit, which cross-examinations may hurt more than help one’s cause, whether permitted by due process or not; and (2) the appellant could have cross-examined the officer on the contents of the UTCs, since the officer took the stand, and the record shows the appellant had the UTCs available. Due process “guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense [or the dissent] might wish.” (Citations and punctuation omitted; emphasis supplied.) Price v. State, 223 Ga. App. 185, 189 (8) (477 SE2d 353) (1996). In the case sub judice, no cross-examination was attempted regarding venue, because venue was a given in the court below.⁴

“[I]n reviewing on the general grounds, . . . evidence in the record is reviewed on appeal in the light most favorable to the state.” (Citations and punctuation omitted.) Gibbs v. State, 157 Ga. App. 530, 531 (278 SE2d 111) (1981). From a review of the entire record before us, we find the evidence of venue in the case sub judice, although slight, is sufficient. Davis v. State, 203 Ga. App. 106 (416 SE2d 375) (1992).

Judgment affirmed.

Andrews, C. J., Pope, P. J, and Johnson, J., concur. Birdsong, P. J., Blackburn and Ruffin, JJ, dissent.

1 The appellant “withdrew” his motion for directed verdict. The dissent opines that such withdrawal was motivated by the “futility” of the motion and, based thereon, excuses appellant’s failure to raise any issue regarding venue. However, the futility of a motion for directed verdict does not relieve a party from preserving an issue thereby for appellate purposes, the identification of which issue makes the motion a far from “futile” act. To find otherwise would be to invite a whole new basis upon which to argue against the waiver of issues that were not raised or, as in the instant case, even alluded to in the court below.

2 As alternatively recognized by the dissent, the affidavit in a UTC makes a UTC more analogous to an arrest warrant or search warrant than it is to an accusation or indictment. Accordingly, those cases which hold that an accusation or indictment is not evidence are simply inapplicable.

3 See also.Dept. of Revenue v. McCray, 215 Ga. 678 (113 SE2d 132) (1960); Baker v. City of Atlanta, 211 Ga. 34, 35 (3) (83 SE2d 682) (1954); Woodruff v. Balkcom, 205 Ga. 445, 447 (2) (53 SE2d 680) (1949); Roberts v. Roberts, 201 Ga. 357 (39 SE2d 749) (1946); Branch v. Branch, 194 Ga. 575, 577 (22 SE2d 124) (1942); Frank v. State, 142 Ga. 741, 761 (83 SE 645) (1914); see also OCGA § 24-7-21; Johnson v. State, 204 Ga. App. 453 (419 SE2d 741) (1992).

4 It should be noted that appellant himself does not raise any issues regarding cross-examination, inadmissible evidence, hearsay, “vague and unexplained markings,” or deprivation of due process; the dissent raises these issues on appellant’s behalf.