Following a jury trial in which the State alleged that Rene Zipperer had side-swiped another vehicle with her truck and then left the scene of the accident, a Chatham County jury found Zipperer guilty of leaving the scene of an accident, OCGA § 40-6-270 a, but acquitted her of failure to maintain a lane, OCGA § 40-6-48 1. She appeals from the denial of her motion for new trial, contending that the trial court erred in prohibiting a character witness from testifying on her behalf and in ordering her to pay restitution for damages to the other driver’s car. For the following reasons, we affirm her conviction, but vacate the court’s restitution order and remand the case for resentencing. Viewed in the light most favorable to the jury’s verdict,1 the evidence showed that, on April 18, 2007, Zipperer was driving her dump truck on a Savannah street where on-going construction forced drivers to merge into a single, left-hand lane. As Zipperer drove in that lane, another driver attempted to merge left into the same lane. According to the other driver, Zipperer’s truck side-swiped her car as she was merging and broke off her driver’s side mirror. Zipperer did not stop, even though the other driver followed Zipperer’s truck while yelling out the window and honking her horn. When Zipperer stopped at a red light, the other driver got out of her car, knocked on Zipperer’s door, asked her why she did not stop, and tried to block the truck from moving. Zipperer drove around the driver, who then called the police. An officer stopped Zipperer shortly thereafter. When asked about the collision, Zipperer told the officer that she had seen the other vehicle try to merge into her lane, but she did not hit the vehicle. At trial, Zipperer also denied hitting the vehicle with her truck.
1. Zipperer contends that the court erred in prohibiting her from calling a character witness. The potential witness had been in the jury panel and had participated in voir dire, but had not been picked for the jury. The trial transcript shows that, when Zipperer’s counsel attempted to call the witness, the prosecutor alerted the judge that the witness had been part of the jury pool. The judge then stated that he was not going to allow the witness to testify unless Zipperer’s counsel had subpoenaed him prior to trial. When counsel responded that the witness had not been subpoenaed, the judge ruled that the witness would not be allowed to testify. Zipperer’s counsel did not object to the ruling, and the witness was dismissed from the courtroom.
