Totino v. State

The trial court did not abuse its discretion in granting an exception to the rule of sequestration so that the state's only witness, the investigating officer, could assist the prosecutor in presenting the state's case.

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A jury found Nicholas Joseph Totino guilty of driving under the influence of alcohol to the extent that he was less safe to drive, driving while having an alcohol concentration of 0.10 grams or more a “per se violation”, and following another vehicle too closely. Totino appeals, arguing that the evidence was insufficient to support the verdict and that the trial court should have granted a directed verdict of acquittal. Totino further asserts that the trial court erred in failing to rule on his motion in limine, refusing to exclude the arresting officer from the courtroom during trial, and denying his motion for new trial. Finding no error, we affirm. 1. On appeal from a criminal conviction, we construe the evidence in a light most favorable to the jury’s verdict, and the defendant no longer enjoys a presumption of innocence.1 We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient for the jury to find Totino guilty beyond a reasonable doubt.2

Viewed in this manner, the evidence shows that, just before 2:00 a.m. on May 9, 2001, Lieutenant Thomas Bardugon of the Gwinnett County Police Department observed Totino driving “right on the tail” of another car on Interstate 85. According to Bardugon, Totino was traveling approximately 70 m.p.h. and was, at times, only five feet from the car in front of him. Bardugon followed Totino for several miles, noting that Totino’s vehicle weaved within its lane and stayed very close to the car in front the entire time.

Totino v. State

The trial court did not abuse its discretion in granting an exception to the rule of sequestration so that the state's only witness, the investigating officer, could assist the prosecutor in presenting the state's case.

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