Davis v

State, 235 Ga. App. 10, 507 S.E.2d 827 (1998). 450 Officer waving a car to a stop was not a Terry stop by virtue of O.C.G.A. § 40-6-395. — A DUI defendant was not forced to stop by a police officer who waved the defendant down by virtue of O.C.G.A. § 40-6-395 because the officer told the defendant that the defendant was free to go and there was no pursuit involved. Butler v. State, 303 Ga. App. 564, 694 S.E.2d 168 (2010). Probable cause to arrest for violation. — In an arrestee’s 42 U.S.C. § 1983 suit alleging that that the arrestee was falsely arrested in violation of U.S. Const., amend. IV the arresting officer was entitled to qualified immunity because actual probable cause to affect the arrestee’s arrest for violating O.C.G.A. § 40-6-395(c) existed after police received a citizen call about a civilian car using police-like strobe lights, the arrestee’s car matched the citizen’s description, the officer saw the arrestee activate strobe lights on the arrestee’s car, and the officer found a strobe light switch box in the car. Baker v. Moskau, 335 Fed. Appx. 864 (11th Cir. 2009) (Unpublished). No audible signal given. — When indictment charged the defendant with attempting to elude ‘‘after having been given visual and audible signal to bring the vehicle to a stop’’ but, at trial, the arresting officer testified that the officer used only visual signals, the state failed to prove the signal was given in the manner alleged, and the evidence was insufficient to support the charge as made in the indictment. Little v. State, 202 Ga. App. 7, 413 S.E.2d 496 (1991). Offenses of fleeing and eluding not merged with suspended license violation. — Convictions under both O.C.G.A. §§ 40-5-58(c) and 40-6-395(b)(5)(A) were proper under O.C.G.A. § 16-1-6 as the elements of both charged offenses required different proof. Under O.C.G.A. § 40-5-58(c), the state proved that the defendant was declared an habitual violator, was properly notified of such status, and that the defendant operated a vehicle without having obtained a valid driver’s license; while under O.C.G.A. § 40-6-395(b)(5)(A), proof that the driver committed a misdemeanor while fleeing or attempting to elude, that the driver was 40-6-395 trying to escape arrest for a felony offense other than road violations, and that the driver committed one of the statutorily enumerated acts was required. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003). Sufficient evidence of first degree homicide by vehicle while eluding. — Evidence was sufficient to convict the defendant of first degree homicide by vehicle while fleeing and attempting to elude a pursuing police vehicle because the officer began following a car as the officer suspected that the driver was impaired; the officer activated the vehicle’s lights to stop the car to investigate whether the driver was impaired, but the defendant did not pull over and stop; after the officer blew the air horn to give the defendant an audible stop signal, the car accelerated; seconds later, the car failed to negotiate a sharp curve and crashed into a utility pole; on arrival at the hospital emergency room, the passenger was declared dead; and the passenger died as a result of injuries suffered in the crash. Moceri v. State, 338 Ga. App. 329, 788 S.E.2d 899 (2016), cert. denied, No. S17C0095, 2017 Ga. LEXIS 210 (Ga. 2017). Indictment for felony murder and vehicular homicide. — Defendant could be indicted for vehicular homicide under O.C.G.A. § 40-6-393 and felony murder during the commission of fleeing and attempting to elude a police officer under O.C.G.A. § 40-6-395. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998). Charge predicate to felony murder. — Charge under O.C.G.A. § 40-6-395 of fleeing and attempting to elude a police officer served as a predicate to felony murder. State v. Tiraboschi, 269 Ga. 812, 504 S.E.2d 689 (1998). Dual prosecution valid, but sentencing merged. — Defendant could be lawfully prosecuted for both O.C.G.A. § 40-6-395(a) and (b)(5)(A) without offending O.C.G.A. § 16-1-7(a), although the defendant could not be sentenced for both; the court found that because all of the evidence was used up to prove the crime of felony fleeing or attempting to elude, the misdemeanor conviction for fleeing or attempting to elude merged into the greater offense. Buggay v. State, 263 Ga. App. 520, 588 S.E.2d 244 (2003). 451 Conviction upheld. — Defendant was properly convicted of a charge of attempting to elude a police officer when the evidence showed that the officer was on patrol and in the officer’s patrol car and had the officer’s blue light flashing and siren sounding. Cook v. State, 180 Ga. App. 877, 350 S.E.2d 847 (1986). Evidence was sufficient to support the conviction of the defendant, notwithstanding that a videotape recorded by a video camera in the arresting officer’s patrol car indicated that the defendant’s vehicle disappeared from the officer’s view as the officer completed a U-turn and had already come to a stop by the time the officer made a left turn into a commercial complex, since the officer testified that the defendant was the driver of the vehicle and that the defendant attempted to elude the pursuing police officer through the defendant’s actions and denials after the defendant brought the defendant’s vehicle to a stop. Turner v. State, 236 Ga. App. 592, 512 S.E.2d 699 (1999). Defendant’s conviction under O.C.G.A. § 40-6-395 was upheld as: (1) the conviction was supported by sufficient evidence of the defendant’s failure to yield to an uniformed police officer driving a marked police vehicle when commanded to do so; (2) the issue as to whether a failure to stop was wilful was a question for the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act; (3) a motion to quash the accusation contested the authenticity of the state’s evidence and did not attack the accusation for a facial defect, thus making denial of the motion proper; (4) the pursuing officer was not called upon to exercise the legislative function of defining what constituted a crime, but the executive branch function of enforcing the law; (5) there was no constitutional requirement that the statute had to contain a statement that a justification defense be asserted; (6) the State Court of Douglas County had subject-matter jurisdiction over the case; and (7) since the defendant was not found guilty of a wilful failure to stop, a contention that the defendant could not be tried for the offense was moot. Harbuck v. State, 280 Ga. 775, 631 S.E.2d 351 (2006). 40-6-395 Given evidence from an ensuing police officer identifying the defendant as the driver of the vehicle stopped, and because the jury was the judge of the credibility of the witnesses presented at trial, and was authorized the reject the defendant’s alibi defense, sufficient evidence was presented to support the defendant’s convictions for reckless driving, failure to maintain a lane, driving with defective equipment, fleeing or attempting to elude a police officer, and obstruction of a police officer. Daniel v. State, 282 Ga. App. 291, 638 S.E.2d 430 (2006). Because sufficient direct and circumstantial evidence showed that the defendant, a prior felon wielding a weapon, engaged in a fight with the two victims, fatally wounding one and shooting the other in the arm, and thereafter fled from police, the defendant’s convictions for involuntary manslaughter, reckless conduct, fleeing and eluding, and possession of a firearm by a convicted felon were upheld on appeal. Alvin v. State, 287 Ga. App. 350, 651 S.E.2d 489 (2007). Evidence was sufficient to support the defendant’s convictions for trafficking in cocaine, possession of a firearm during the commission of a felony, possession of a firearm by a convicted felon, and felony fleeing or attempting to elude based on the defendant’s involvement in a police chase that included speeds in excess of 100 m.p.h. in a residential area and the defendant’s attempt to flee on foot. Hinton v. State, 297 Ga. App. 565, 677 S.E.2d 752 (2009). Evidence was sufficient to support the defendant’s conviction for fleeing from an officer since the defendant admitted to being the driver of the vehicle and that the defendant ‘‘freaked out’’ when the co-defendant returned to the car indicating that a fast food restaurant robbery had taken place and police sirens were heard, so the defendant ‘‘hit the gas’’ when a sergeant pulled behind the vehicle. Broyard v. State, 325 Ga. App. 794, 755 S.E.2d 36 (2014). Evidence was sufficient to support the appellant’s conviction as a party to the crime of violating O.C.G.A. § 40-6-395(a) for fleeing and eluding because the appellant testified and admitted shoplifting, 452 admitted to having a prior record of shoplifting, had only recently been released from prison, and that getting caught on the day of the events would be a parole violation that would send the appellant back to prison. McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (2015). Officer’s testimony was sufficient to establish the defendant’s identity as the individual who refused to bring a vehicle to a stop after having been given a visual and audible signal by the officer. Glispie v. State, 335 Ga. App. 177, 779 S.E.2d 767 (2015), aff ’d in part and rev’d in part, 300 Ga. 128 793 S.E.2d 381 (Ga. 2016). Evidence sufficient. — There was evidence sufficient to convince any rational trier of fact of the existence of the essential elements of the crime of attempting to elude an officer. Hassell v. State, 212 Ga. App. 432, 442 S.E.2d 261 (1994); Finlon v. State, 228 Ga. App. 213, 491 S.E.2d 458 (1997); Davidson v. State, 237 Ga. App. 580, 516 S.E.2d 90 (1999); Gibson v. State, 243 Ga. App. 610, 533 S.E.2d 783 (2000). Evidence that the arresting officer was uniformed and driving a marked patrol car and that the defendant fled after a license check had been completed supported the defendant’s conviction. Davis v. State, 235 Ga. App. 10, 507 S.E.2d 827 (1998). Evidence was sufficient to prove that the defendant was guilty of reckless driving and attempting to elude an officer when the defendant led the officer on a high speed chase driving on the wrong side of the road and wilfully failed to bring the defendant’s car to a stop after the officer activated the patrol car’s blue lights and siren. Brackins v. State, 249 Ga. App. 788, 549 S.E.2d 775 (2001). Evidence authorized the trial court to find beyond a reasonable doubt that the defendant attempted to elude a police officer under O.C.G.A. § 40-6-395(a) as the defendant wilfully failed and refused to bring the vehicle to a stop when given visual and audible signals to do so. Weir v. State, 257 Ga. App. 387, 571 S.E.2d 191 (2002). Convictions for armed robbery, aggravated assault, fleeing to elude a police officer, and reckless driving were all upheld on appeal given the sufficiency of the 40-6-395 identification evidence supplied by the victim, an investigating officer, and the arresting officer, as well as observations made by the latter in apprehending the defendant; moreover, the defendant’s failure to object to the admission of a photographic lineup and show-up as impermissibly suggestive precluded appellate review of those issues. Newton v. State, 280 Ga. App. 709, 634 S.E.2d 839 (2006). Evidence supported a defendant’s convictions for fleeing and attempting to elude a police officer as an underlying offense for felony murder, theft by taking, vehicular homicide, disregarding a traffic control device, failing to stop at a stop sign, and reckless driving as: (1) the defendant stole a vehicle and was spotted by an officer shortly after the vehicle was reported as stolen; (2) when the officer began to follow the vehicle, the vehicle rapidly accelerated; (3) the officer followed the stolen vehicle for several blocks, with both vehicles traveling between 60-70 miles per hour; (4) the vehicle continued to accelerate after the officer turned on the officer’s blue lights and siren; (5) when the stolen vehicle ran a red light, the vehicle struck a car, killing the driver; and (6) the officer and the owner of the stolen vehicle identified the defendant as the person driving the stolen vehicle. Ferguson v. State, 280 Ga. 893, 635 S.E.2d 144 (2006). Evidence supported a defendant’s conviction of bringing stolen property to Georgia, eluding an officer, and possessing marijuana as a party, if not as a conspirator, since: (1) the defendant discussed with the defendant’s boyfriend what would happen if they were apprehended by the police; (2) the boyfriend gave the defendant a handgun after the boyfriend stole a new gun and the defendant packed two guns with the defendant’s personal items and the ski masks; (3) the defendant suspected that the truck was stolen, refused to ask about the truck’s origin, saw the stolen gun on the seat of the truck, observed two gas drive-offs, ate stolen food, smoked shared marijuana repeatedly, and sat next to the glove compartment where the marijuana lay; and (4) the defendant was silent during the police pursuits, saw the defendant’s boyfriend retrieve a stolen handgun just prior to an 453 assault of a police officer, did not hinder the boyfriend or warn the police, lied to the police to cover up the matter, and referred to the entire affair as having ‘‘fun for a minute.’’ Michael v. State, 281 Ga. App. 289, 635 S.E.2d 790 (2006), overruled on other grounds by Gibbs v. State, 340 Ga. App. 723, 798 S.E.2d 308 (2017). There was sufficient evidence to convict the defendants of fleeing or attempting to elude a police officer in violation of O.C.G.A. § 40-6-395(a); both of the defendants, along with the driver, fled after the vehicle in which they were riding crashed, and, as a result, the defendants, by fleeing with the driver, became chargeable as parties to the crime. Cooper v. State, 281 Ga. App. 882, 637 S.E.2d 480 (2006). There was sufficient evidence to support a defendant’s conviction for fleeing and eluding the police based on the defendant, after panicking from striking a vehicle in a nightclub parking lot, testifying at trial that the defendant attempted to flee to avoid arrest for driving under the influence and for striking the parked car. Adams v. State, 293 Ga. App. 377, 667 S.E.2d 186 (2008). Evidence that the defendant eluded police at 75 miles per hour (mph) in a 25 mph zone, ran several stop signs, abandoned the car, and fled on foot was sufficient to convict the defendant of fleeing and attempting to elude in violation of O.C.G.A. § 40-6-395(a). Bridges v. State, 293 Ga. App. 783, 668 S.E.2d 293 (2008). Evidence that a defendant gave a fake name and address, sped from the scene of a traffic stop, abandoned the truck, and continued to run from, hide from, and fight with police was more than sufficient to support convictions for misdemeanor obstruction of a police officer in violation of O.C.G.A. § 16-10-24(a) and fleeing or attempting to elude in violation of O.C.G.A. § 40-6-395(a). Lightsey v. State, 302 Ga. App. 294, 690 S.E.2d 675 (2010). Because the defendant chose to run away from a traffic stop, a police officer had probable cause to arrest the defendant for fleeing or attempting to elude a police officer; voluntarily throwing a digital scale and a baggie of suspected cocaine to the sidewalk near parking spaces within an apartment complex demon- 40-6-395 strated an abandonment of the items. State v. Nesbitt, 305 Ga. App. 28, 699 S.E.2d 368 (2010). Evidence was sufficient to find the defendant guilty beyond a reasonable doubt of two counts of fleeing and attempting to elude a police officer because officers pursued the defendant’s fleeing vehicle in a high-speed chase in patrol vehicles clearly marked with their emergency lights and sirens activated; despite those warnings, the defendant ran a stop sign and a red light and refused to stop the defendant’s vehicle until ‘‘stop sticks’’ disabled the defendant’s vehicle. Tauch v. State, 305 Ga. App. 643, 700 S.E.2d 645 (2010). Evidence, viewed in the light most favorable to the verdict, was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of felony fleeing or attempting to elude a police officer, failure to stop upon striking an unattended vehicle, and failure to stop at or return to the scene of an accident, violations of O.C.G.A. §§ 40-6-395(a) and (b)(5)(A), 40-6-270(a), and 40-6-271(a), when the defendant refused to stop a vehicle for two bicycle-patrol uniformed officers, drove the vehicle into one of the officers, struck two unattended vehicles, and struck an officer’s marked bicycle. Fairwell v. State, 311 Ga. App. 834, 717 S.E.2d 332 (2011). Evidence that the defendant traveled 0.7 miles before stopping after the officers engaged the emergency lights and siren on the patrol car, passing a number of safe locations to stop, supported the defendant’s conviction for fleeing and attempting to elude. King v. State, 317 Ga. App. 834, 733 S.E.2d 21 (2012). Evidence insufficient for conviction. — Johnson v. State, 246 Ga. App. 197, 540 S.E.2d 212 (2000). Evidence was not sufficient to sustain the defendant’s conviction for fleeing and attempting to elude police because the state charged the defendant with striking or colliding with another vehicle while the defendant was attempting to elude police, but there was no evidence that a vehicle the defendant drove struck or collided with another vehicle. James v. State, 265 Ga. App. 689, 595 S.E.2d 364 (2004). Given evidence that the pursuing officer 454 failed to activate the blue emergency lights, and no evidence was presented that the officer gave any other signal to communicate to the driver of the pursued vehicle of the requirement for that driver to stop, the defendant’s conviction under O.C.G.A. § 40-6-395(a) was reversed. Bradford v. State, 287 Ga. App. 50, 651 S.E.2d 356 (2007). Because the defendant complied with a deputy’s signal to stop a vehicle and the deputy did not arrest the defendant or instruct the defendant to remain at the scene while the officer chased a wanted person, the defendant’s subsequent flight from the scene did not equate to fleeing pursuit by an officer under O.C.G.A. § 40-6-395(a); accordingly, the trial court erred in denying the defendant’s motion for a directed verdict of acquittal. Bledson v. State, 294 Ga. App. 772, 670 S.E.2d 223 (2008). Evidence insufficient to support felony conviction. — Evidence was sufficient to support the defendant’s guilty verdict as to misdemeanor fleeing and eluding, in violation of O.C.G.A. § 40-6-395, but the evidence was insufficient to show that there were traffic conditions that placed the general public at risk of serious injury to support the defendant’s conviction for felony fleeing and eluding. Hicks v. State, 321 Ga. App. 773, 743 S.E.2d 458 (2013). Circumstantial evidence was sufficient to convict the defendant of misdemeanor fleeing or attempting to elude a police officer because a deputy identified the defendant as the driver; another officer followed the defendant out of the parking lot when the defendant refused to stop; and the officer activated the vehicle’s lights and siren but lost sight of the speeding car moments before a car of the same color struck another vehicle just ahead; however, the evidence was insufficient to convict the defendant of felony fleeing or attempting to elude as no evidence was presented that the defendant was attempting to elude arrest for a non-traffic violation when the defendant struck the other vehicle. Johnson v. State, 337 Ga. App. 622, 788 S.E.2d 559 (2016). Evidence insufficient for arrest. — Because the circumstances of the defen- 40-6-395 dant’s low-speed flight from an uniformed detective, who was driving an unmarked vehicle, were insufficient to present law enforcement with evidence of a particular crime, the defendant could not be charged with the crime of attempting to elude an officer, and police lacked the probable cause sufficient to warrant an arrest for the offense; thus, the search incident to the arrest was invalid, warranting suppression of the evidence seized. Stephens v. State, 278 Ga. App. 694, 629 S.E.2d 565 (2006). Directed verdict motion properly denied. — In a case involving charges of obstruction of an officer and attempting to elude, a motion for directed verdict was properly denied since the officer was investigating the defendant for driving under the influence and the defendant did not respond to the officer’s orders and forced the officer to get a warrant to effectuate an arrest. Reed v. State, 205 Ga. App. 209, 422 S.E.2d 15, cert. denied, No. S92C1446, 1992 Ga. LEXIS 865 (1992). Counsel not ineffective in conceding guilt. — Counsel was not ineffective by conceding defendant’s guilt on a fleeing and eluding charge in order to build credibility and avoid conviction on the more serious charges; the fleeing charge carried a five-year maximum sentence, O.C.G.A. § 40-6-395(b)(5)(A), whereas the defendant faced a sentence of life without parole were the defendant convicted of armed robbery. Payne v. State, 338 Ga. App. 677, 791 S.E.2d 451 (2016). Mandatory sentence. — Because O.C.G.A. § 40-6-395 imposed a minimum sentence of 10 days upon conviction of fleeing or attempting to elude a police officer, the trial court erred in failing to sentence a defendant to the mandatory minimum incarceration. State v. Searcy, 277 Ga. App. 642, 627 S.E.2d 210 (2006). Cited in Snell v. McCoy, 135 Ga. App. 832, 219 S.E.2d 482 (1975); State v. Edwards, 236 Ga. 104, 222 S.E.2d 385 (1976); Torley v. State, 141 Ga. App. 366, 233 S.E.2d 476 (1977); Brock v. State, 146 Ga. App. 78, 245 S.E.2d 442 (1978); McSears v. State, 247 Ga. 48, 273 S.E.2d 847 (1981); Hill v. State, 159 Ga. App. 589, 284 S.E.2d 92 (1981); Lester v. State, 253 Ga. 235, 320 S.E.2d 142 (1984); Freeman 455 v. State, 194 Ga. App. 905, 392 S.E.2d 330 (1990); Cabral v. State, 199 Ga. App. 557, 405 S.E.2d 556 (1991); Jackson v. State, 223 Ga. App. 27, 477 S.E.2d 28 (1996); English v. State, 261 Ga. App. 157, 582 S.E.2d 136 (2003); State v. Stilley, 261 Ga. App. 868, 584 S.E.2d 9 (2003); Faulkner v. State, 277 Ga. App. 702, 627 S.E.2d 423 (2006); Jaheni v. State, 285 Ga. App. 266, 645 S.E.2d 735 (2007); Leachman v. State, 286 Ga. App. 708, 649 S.E.2d 886 (2007); 40-6-396 McClendon v. State, 287 Ga. App. 238, 651 S.E.2d 165 (2007); Green v. State, 287 Ga. App. 248, 651 S.E.2d 174 (2007); Francis v. State, 287 Ga. App. 428, 651 S.E.2d 779 (2007); Segel v. State, 293 Ga. App. 506, 667 S.E.2d 670 (2008); Westmoreland v. State, 287 Ga. 688, 699 S.E.2d 13 (2010); Myers v. State, 311 Ga. App. 668, 716 S.E.2d 772 (2011); Russell v. State, 319 Ga. App. 472, 735 S.E.2d 797 (2012).