X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Doyle, Presiding Judge. Following a bifurcated jury trial, Yaseen Asabur Johnson was convicted of possession of a firearm by a convicted felon,[1] failure to stop at an accident,[2] and driving without a license.[3] Johnson moved for a new trial, and after he waived a hearing on the matter, the trial court denied his motion. Johnson now appeals, arguing that (1) there was insufficient evidence that the vehicle was attended to support his conviction for failure to stop at an accident; (2) his driving record was improperly admitted hearsay and/or he received ineffective assistance of counsel for failing to properly object to its admission; and (3) the order of restitution was not supported by the evidence. For the reasons that follow, we affirm in part and reverse in part. Viewed in favor of the verdict,[4] the record shows that on April 18, 2018, at around 10:00 or 11:00 p.m., an officer responded to a call about a hit-and-run accident. Although it was dark, the street was “well-lit” from street lights. The officer observed a Ford Focus that was “pretty well damaged,” and he talked to Jacqueline Harper, who had seen the vehicle driving on the road at a high rate of speed and then hitting her vehicle, after which accident two men exited the Ford Focus and ran away. The officer explained that Harper’s vehicle was parked on the side of the road, and the Ford Focus had a “pretty brutal impact” with it, resulting in the Focus having to be towed from the scene — “pretty much the engine was hanging out of it.” The officer observed that Harper’s vehicle also appeared to be “totaled” and would, in his opinion, require towing from the scene, but she did not have it towed while he was there. In the driver’s seat of the Ford, the officer found a work identification card for Johnson, a .25 caliber handgun, and in the driver’s floorboard, a cellphone playing loud music. Harper also identified Johnson, whom she knew as “Yay Yay,” as the driver of the vehicle, upon which information the officer prepared a warrant for Johnson’s arrest. The officer ran Johnson’s name through the police computer system to obtain his Georgia state identification number, which he ran through national and state databases, resulting in the officer’s discovery of Johnson’s unlicensed status. At trial, Harper testified, explaining that she was visiting her mother on the day in question, and she had her two children with her. When the visit was ending, she loaded up her car and had the car door open, when she saw a vehicle coming toward her car at “a very high speed.” The vehicle collided with the front of hers, sending her car back into a telephone pole, resulting in damage to the front and rear end of her car. Harper testified that Johnson exited the driver’s side of the speeding vehicle and another male exited the passenger side; although she did not know Johnson personally, she knew “of him” through her older cousins, and she identified him in the courtroom. Harper testified that it was “getting dark” at the time of the accident, and she recognized Johnson. After the men ran away, she went over to the other vehicle, and she saw an identification card and other things in the car. Harper testified that although no one was in her vehicle when it was hit, her finger was injured because her hand was on the car door, and she had to pay approximately $1,000 for her insurance deductible to have her car repaired. The State tendered into evidence certified copies of three of Johnson’s prior convictions for driving without a license or driving with a suspended license. The State also tendered a certified copy of Johnson’s driving history from the State of Georgia Department of Driver Services (“DDS”), which listed his permit status as “not licensed,” his “regular status” as “suspension (all),” and his “CDL Status” as “suspension (all).” Johnson moved for a directed verdict as to the charge of driving without a license because the certified driving record was not properly authenticated and because no one testified that he did not have a license at the time of the incident, which motion the trial court denied. The jury was first presented with the charges of failing to stop at an accident and driving without a license, for which they returned guilty verdicts, finding specially that Johnson had been guilty of three prior driving without a license convictions in the five prior years. Next, the jury was presented with the charge of possession of a firearm by a convicted felon, in support of which the State tendered Johnson’s prior felony conviction for possession of cocaine. The jury returned a guilty verdict as to that charge as well. 1. Johnson argues that the trial court erred by denying his motion for new trial because there was insufficient evidence that Johnson knowingly left the scene of an accident with an attended vehicle, which requires the reversal of his conviction for failure to stop at an accident. In order to establish the violation of OCGA § 40-6-270 (a), the State must show that the driver of a vehicle involved in an accident resulting in damage to another “vehicle that is driven or attended by any person,” knowingly failed to stop at the scene of the accident or “provide the driver of the other vehicle with certain personal information, including his name, address, and vehicle registration number, and to show his driver’s license.”[5] Harper testified that her hand was injured from the impact of the accident because her hand was on the door at the time. Thus, there was sufficient evidence from her testimony for the jury to find that the vehicle was “attended” at the time of the accident.[6] Although Johnson also contends that there was insufficient evidence to support this verdict because Harper did not testify that Johnson turned around and saw her at the vehicle prior to leaving the scene of the accident, it was not necessary for the State to establish actual knowledge in order to establish beyond a reasonable doubt that Johnson violated OCGA § 40-6-270 (a). “To prove the knowledge element of the offense, it is not absolute and positive knowledge which must be shown, but rather only that the circumstances were such that a reasonable person would have believed that an accident had occurred resulting in death, damage[,] or injury to another.”[7] Based on Harper’s and the officer’s testimony as to the severity of the crash and Johnson’s behavior of running immediately from the scene, the jury was authorized to find that a reasonable person would have believed that an accident occurred for which he needed to stop and give his information.[8] The jury was authorized to find that had Johnson looked at the vehicle he had hit, he would have discovered that it was attended by Harper, who was touching the vehicle when Johnson drove into it. Accordingly, the trial court did not err by denying Johnson’s motion for new trial as to this issue. 2. Johnson also argues that the trial court erred by admitting his driving history, arguing that it was hearsay. A certified copy of Johnson’s driving history was admitted into the record in two parts based on the objection of Johnson’s attorney. And the second portion of the driving history did not go out with the jury, but was submitted to the Court, which included an official notice of license suspension issued to Johnson on February 6, 2018. In its order denying his motion for new trial, the trial court relied on former OCGA § 24-3-17 in order to uphold its determination that the State was permitted to admit Johnson’s driving record because it was “a certified copy of a Department of Public Safety [("DPS")] record.”[9] This former statute is now codified in OCGA § 24-9-924 (a): Any court may receive and use as evidence in any proceeding information otherwise admissible from the records of the [DPS] or the [DDS] obtained from any terminal lawfully connected to the Georgia Crime Information Center [("GCIC")] without the need for additional certification of such records. In this case, Johnson’s driving record was accompanied by the signature of an official custodian of the DDS stating that it was “a true and correct copy of the original as appears in the [DDS].” Thus, a proper foundation was laid for its admission without the need for additional testimony.[10] Here, no one testified to obtaining the record, it was merely entered into evidence by the State, but because it was certified by the DDS official custodian, it was sufficient to meet the statutory requirement. Moreover, the jury was authorized to find based on the statements in the documents that Johnson was not licensed to drive in Georgia. Although Johnson seems to argue that it was possible he was legally permitted to drive in Georgia at the time of the accident, in the face of the documentary evidence, he offered only speculative argument which was for the jury to accept or reject. Driving a vehicle is not an activity for which all people of age automatically have authorization in which to participate,[11] and the evidence presented by the State supports the jury’s verdict that Johnson was not authorized to drive at the time of the accident. Accordingly, this enumeration is without merit.[12] 3. Johnson also argues that the trial court erred by sentencing him to restitution without sufficient evidence of damage or injury. The State initially requested $1,750 in restitution, but reduced it to $1,000 based on Harper’s testimony. The sentencing document in the record, however, establishes that no restitution was ordered but the record was kept open for a hearing within six months. Although the record on appeal has not been updated with a final amount of restitution,[13] the trial court is not authorized to order restitution for the conviction of leaving the scene of the accident.[14] Judgment affirmed in part and reversed in part. Reese and Brown, JJ., concur.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
May 01, 2025
Atlanta, GA

The Daily Report is honoring those attorneys and judges who have made a remarkable difference in the legal profession.


Learn More
December 02, 2024 - December 03, 2024
Scottsdale, AZ

Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!


Learn More
December 11, 2024
Las Vegas, NV

This event shines a spotlight on how individuals and firms are changing the investment advisory industry where it matters most.


Learn More

We are seeking two attorneys with a minimum of two to three years of experience to join our prominent and thriving education law practice in...


Apply Now ›

Description: Fox Rothschild has an opening in the New York office for a Real Estate Litigation Associate with three to six years of commerci...


Apply Now ›

Downtown NY property and casualty defense law firm seeks a Litigation Associate with 3+ years' experience to become a part of our team! You ...


Apply Now ›