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Porter v. State

The vehicle's actual speed is not a material averment of an indictment for speeding.

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A Clayton County jury found Paul Leroy Porter guilty of speeding, and he was sentenced to twelve months incarceration.1 Porter appeals his conviction, arguing that the trial court erred in denying his motion for a directed verdict and that the trial court improperly charged the jury. For reasons that follow, we affirm. 1. We review a criminal conviction in a light most favorable to the verdict, and we will uphold the conviction “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”2 We do not weigh the evidence or evaluate witness credibility.3 And “the standard for reviewing the denial of a motion for a directed verdict of acquittal is the same as that used for reviewing the sufficiency of the evidence supporting a criminal conviction.”4 Here, the record shows that Officer Massarelli of the Clayton County Police Department saw Porter driving on Interstate 675 on the evening of June 17, 2005. Officer Massarelli visually estimated Porter’s speed to be 83 miles per hour. The speed limit on that portion of Interstate 675 is 65 miles per hour. Porter was charged by indictment with “speeding 16-20 over.”

Porter alleges that there was a fatal variance between the indictment and the evidence presented at trial. Porter argues that, on cross-examination, Officer Massarelli testified that he gave a statement in which he estimated Porter’s speed as “80, 83, somewhere in that area” and that a police report by another officer indicated that Porter’s speed was 80 miles per hour.5 Porter contends he was entitled to a directed verdict because “the State’s evidence only showed that Porter was driving 80 miles per hour in a 65 miles per hour zone and thus, the State failed to prove that Porter was driving 16-20 miles per hour over the posted speed limit as charged in the indictment.”

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