The State Court of DeKalb County sustained the demurrer filed by Yasmin Shabazz during the trial on an accusation charging Shabazz with violating OCGA § § 40-6-20 failure to obey a traffic-control device and 40-6-71 failure to yield the right of way while turning left. The State appeals pursuant to OCGA § 5-7-1 a 1, contending that the trial court erred in concluding that the accusation was fatally defective. For the reasons that follow, we reverse. 1. As an initial matter, we address the issue of whether the State’s appeal is authorized under OCGA § 5-7-1 a 1. Shabazz contends that, although the order purported to sustain Shabazz’s demurrer, the true import of the order was to enter a directed verdict of acquittal based on the State’s failure to adduce evidence sufficient to find Shabazz guilty beyond a reasonable doubt of the traffic violations charged, failure to obey a traffic-control device and failure to yield the right of way while turning left. Because the State may not appeal an order directing a verdict of acquittal based on an insufficiency of the evidence to support a criminal conviction,1 Shabazz contends that the State’s appeal must be dismissed.
While the hearing transcript shows that the trial court considered granting Shabazz’s motion for a directed verdict, the court’s ultimate ruling was limited to sustaining the demurrer and, in effect, dismissing the accusation because of how it was worded. Under OCGA § 5-7-1 a 1, “an appeal may be taken by and on behalf of the State of Georgia from the . . . state courts . . . in criminal cases . . . from an order, decision, or judgment setting aside or dismissing any . . . accusation . . . or any count thereof.” Because the State’s appeal is authorized, Shabazz’s motion to dismiss the appeal is denied. State v. Swint , 284 Ga. App. 343 1 643 SE2d 840 2007 “when the ruling of the trial court is in substance a dismissal of the indictment, the State may appeal an order dismissing an indictment under OCGA § 5-7-1 a 1, even if the order is entered during the course of the trial” citation and punctuation omitted.
