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MELTON v. THE STATE.
70181.
SOGNIER, Judge.
D.U.I. Clarke State Court. Before Judge Pittard.
Appellant was convicted of driving under the influence of alcohol.
1. Appellant contends the trial court abused its discretion by denying his motion for a continuance, as the denial of this motion severely prejudiced his defense. Appellant's counsel was called for jury duty during the week of appellant's trial. When appellant's case was called for trial his attorney moved for a continuance on the ground that he was on jury duty.
App. 712, 713 (1A) (256 SE2d 23) (1979), nor has he shown that appellant's case was harmed by denial of the motion for a continuance. Standridge v. State, 158 Ga. App. 482, 484 (2) (280 SE2d 850) (1981). A motion for a continuance is addressed to the sound discretion of the trial court, Bunge, supra, and under the circumstances of this case we find no abuse of that discretion. Riley v. State, 174 Ga. App. 606 (330 SE2d 808) (1985).
Although appellant argues that his case was prejudiced because the other jurors may have formed an opinion about his counsel which could be detrimental to a fair and impartial trial, there is nothing in the record to support this contention. We will not review factual representations in a brief based on mere speculation which are unsupported by the record. Moore v. State, 174 Ga. App. 460 (330 SE2d 397).
2. Appellant contends he was denied due process of law because the trial court shifted the burden of proof to appellant in its charge relating to presumptions in general and the presumptions relating to levels of intoxication delineated in OCGA 40-6-392 (b). We do not agree.
After giving the jury a general explanation of the meaning of presumptions the court charged the jury, in pertinent part: "However, in mentioning the offering of evidence contradicting the presumption, the rule of law that there is no burden whatsoever on a defendant to offer any testimony or any evidence in support of his innocence is not altered or changed. The burden is entirely on the State, as I have previously charged you, to prove the guilt of the defendant beyond a reasonable doubt." The court subsequently charged the jury on the presumptions set forth in OCGA 40-6-392 (b) relating to a person s blood alcohol content. Appellant contends that under the holding in Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979), the court's charge on presumptions was burden-shifting, relieving the State of proving every element of the offense charged beyond a reasonable doubt. We do not agree.
Both Sandstrom and the recent case of Francis v. Franklin, ---- U. S. ---- (105 SC ----, 85 LE2d 344, 53 LW 4495) (1985), were decided on the ground that a charge that it is presumed that a person intends the natural and probable consequences of his acts created a mandatory presumption of intent, thereby relieving the State of proving an essential element of the crime of malice murder. In Francis, supra, the court stated: "If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. [Cit.] This analysis 'requires careful attention to the words actually spoken to the jury . . ., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.' Sandstrom, supra, at 514."
Looking at the charge as a whole, we find that a reasonable juror could not have interpreted the charge as having created an unconstitutional presumption, thereby shifting the burden of proof to appellant. The court charged the jury specifically that "it is incumbent upon the State to prove that all of the necessary elements of the crime charged in this accusation were committed by the defendant. The defendant enters upon this trial with a presumption of innocence . . . and that presumption remains with him throughout the trial, unless and until it is overcome by evidence submitted to you which establishes his guilt beyond a reasonable doubt." (Emphasis supplied.) The court also charged the jury that a presumption is not evidence, and in reference to offering evidence contradicting a presumption, the rule that there is no burden whatsoever on a defendant to offer any testimony or any evidence in support of his innocence is not altered or changed. Looking at the court's charge as a whole, we find nothing which a reasonable juror could interpret as an unconstitutional shifting of the burden of proof to appellant. As this court has held previously that the language used in the charge here did not shift the burden of proof to appellant, McCann v. State, 167 Ga. App. 368, 369 (2) (306 SE2d 681) (1983), and that the presumptions created by OCGA 40-6-392 do not constitute a denial of due process of law, Olsen v. State, 168 Ga. App. 296, 297 (308 SE2d 703) (1983), we find no error in the court's charge on presumptions.
Judgment affirmed. Birdsong, P. J., concurs. Carley, J., concurs specially.
CARLEY, Judge, concurring specially.
I concur in the judgment and in all that is said in Division 1 of the majority opinion. I also agree with the conclusion of Division 2 that the challenged charge does not require that we reverse the judgment in this case. However, I agree for the reasons set forth in Peters v. State, 175 Ga. App. 463 (333 SE2d 436) (1985).
Ken Stula, Solicitor, for appellee.
Howard Tate Scott, for appellant.
DECIDED JULY 12, 1985.
Thursday May 21 17:24 EDT


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