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BLACK v. THE STATE.
A96A0400.
Judge Harold R. Banke.
Aggravated assault, etc. Walker Superior Court. Before Judge Wood.
William Douglas Black was convicted of two counts of aggravated assault, two counts of interference with government property, driving while intoxicated, reckless driving, attempting to elude, no proof of insurance, and driving without a valid license. On appeal, he enumerates four errors challenging his convictions for aggravated assault, interference with government property, and driving while intoxicated.
This case arose after a Chattanooga, Tennessee police officer observed Black's car parked under the awning of a closed gas station just before midnight. After the officer noticed that Black possessed beer cans, slurred his speech, and smelled strongly of alcohol, he asked for identification and called for backup. As the backup car arrived, Black cranked his car and fled toward Georgia. The backup pursued Black and officers from other jurisdictions were dispatched. Black sped into Georgia, ignoring traffic signals and weaving through traffic and onto sidewalks in heavy rain. Officer Mark Stanfield testified that he saw Black attempt several times to ram a police car which had pulled alongside his car as part of a rolling roadblock. After Black turned left and then attempted to whip his car around in the opposite direction, he sideswiped the right front fender of a City of Lafayette Police Department patrol car participating in the chase but continued his turn. Black then hit another patrol car and slid down an embankment. The officer driving the second car Black hit testified that just prior to impact it appeared Black was in full control of his car. Held:
1. The evidence was sufficient to support the verdicts on aggravated assault and interference with government property Viewed in the light most favorable to the verdicts, a rational trier of fact could find all the essential elements of these crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).
A conviction based on the offense of aggravated assault requires proof of two essential elements: (1) an assault, as defined in OCGA 16-5-20, and (2) aggravation by use of a deadly weapon. King v. State, 213 Ga. App. 268 (444 SE2d 381) (1994). The relevant elements of assault under OCGA 16-5-20 are (1) an attempt to commit a violent injury to the person of another or (2) commission of an act which places another in reasonable apprehension of immediately receiving a violent injury. "A person commits the offense of interference with government property when he destroys, damages, or defaces government property. . . ." OCGA 16-7-24 (a).
The evidence that Black hit the patrol cars while making a U-turn and appeared to be in full control of his vehicle just prior to impact was sufficient for the jury to find that he attempted to commit a violent injury to another's person and interfered with government property Payne v. State, 195 Ga. App. 523, 525 (4) (394 SE2d 781) (1990); see Fields v. State, 167 Ga. App. 400, 401 (2) (306 SE2d 695) (1983). Black does not dispute that a car can be a deadly weapon. Payne, 195 Ga. App. at 525 (4). Instead, he maintains that he lost control after one of the patrol cars rear-ended his vehicle and therefore lacked the intent required for aggravated assault or interference with a government vehicle. However, skid marks at the scene showing Black's collision with the two patrol cars did not corroborate Black's contention. Moreover, the investigating officer testified that he observed no damage to the rear of Black's car. In addition, the officer who followed Black during the chase testified that his car had an airbag which would have inflated with any frontal impact such as that caused by rear-ending Black's car. The evidence was sufficient to support the verdicts notwithstanding Black's argument, which goes to the weight of the evidence and credibility of the witnesses, issues not reviewable on appeal. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).
OCGA 16-2-2; Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II, p. 23 (1991). The requested instruction omitted the final phrase, "criminal negligence," rendering it an incomplete statement of the law. Lewis v. State, 212 Ga. App. 310, 313 (5) (441 SE2d 851) (1994). Nor, under these facts, was an accident charge required even in the absence of a correct request. Helton v. State, 216 Ga. App. 748 (455 SE2d 848) (1995); see Lawson v. State, 214 Ga. App. 464, 465 (2) (448 SE2d 14) (1994). Inasmuch as Black admitted that he continued his attempt to elude the police, even as they strove to implement a rolling roadblock to stop his reckless charge down the highway, no evidence authorizes a finding that the collisions occurred absent a "criminal scheme or undertaking, intention, or criminal negligence." OCGA 16-2-2; see Campbell v. State, 263 Ga. 824, 825-826 (3) (440 SE2d 5) (1994). On the contrary, at best, the evidence shows that at the time of the collision Black was engaging in conduct of such a reckless and wanton character "as to show utter disregard for the safety of others who might reasonably be expected to be injured thereby" Keye v. State, 136 Ga. App. 707, 708 (1) (222 SE2d 172) (1975) (defining criminal negligence).
3. We reject Black's contention that the trial court erred in failing to instruct the jury on the implied consent warnings which must be provided to an accused prior to the introduction of evidence of his refusal to take an intoximeter test. The record shows that Black failed to move to suppress testimony that he refused to take the test, failed to object to such testimony, and failed to request such an instruction orally or in writing. Under these circumstances, the failure to give the charge was not preserved for appellate review. Reagin v. State, 218 Ga. App. 733, 735 (2) (463 SE2d 39) (1995).
State, 219 Ga. App. 318 (1) (b) (464 SE2d 884) (1995). Having considered the statement in context, we conclude that the trial court did not abuse its discretion.
Ralph Van Pelt, District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.
William D. Hentz, for appellant.
DECIDED JUNE 18, 1996 -- RECONSIDERATION DENIED JULY 3, 1996 -- CERT. APPLIED FOR.
Thursday May 21 05:23 EDT


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