                           THIRD DIVISION
                            MILLER, P. J.,
                    MCFADDEN, P. J., and MCMILLIAN, J.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                   February 23, 2017




In the Court of Appeals of Georgia
 A16A1932. MONROE v. THE STATE.

      MCFADDEN, Presiding Judge.

      After a jury trial, Thomas Roy Monroe was convicted of driving under the

influence of alcohol to the extent that he was a less safe driver, speeding, failure to

maintain lane, and driving while possessing an open container of an alcoholic

beverage. Monroe appeals his convictions, arguing that the evidence does not support

them; that the trial court erred by admitting evidence of his prior DUI conviction; that

the trial court erred by allowing the state to introduce certain demonstrative evidence;

and that the trial court should have excluded testimony about an open container of

what appeared to be an alcoholic beverage found in his car.
      We find that the evidence was sufficient and that Monroe has not shown

reversible error in the admission of his prior conviction, the demonstrative evidence,

or the testimony about the open container. So we affirm Monroe’s convictions.

      1. Sufficiency of the evidence.

      “On appeal from a criminal conviction, the defendant no longer enjoys a

presumption of innocence, and we view the evidence in a light favorable to the

verdict.” Coleman v. State, 284 Ga. App. 811, 812 (1) (644 SE2d 910) (2007)

(citation omitted). So viewed, the evidence showed that at 3 a.m. on May 9, 2013, a

sergeant with the Gwinnett County Police Department pulled over Monroe’s car for

speeding and for failing to maintain his lane. The car was traveling at a rate of 65 to

70 miles per hour, while the speed limit was 45 miles per hour, and the sergeant had

seen Monroe twice drift over his lane line. The sergeant immediately smelled an odor

of alcohol coming from inside the car. The sergeant believed that Monroe was

intoxicated to the point where he was an unsafe driver.

      The sergeant called for another officer to take over the investigation. That

officer observed six out of six clues of impairment in his horizontal gaze nystagmus

evaluation of Monroe. He also smelled the odor of an alcoholic beverage coming

from Monroe’s mouth and observed that Monroe’s speech was somewhat slurred.

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Monroe did not participate in the walk-and-turn and one-leg stand evaluations,

explaining that he had been in a car accident. He refused to submit to a breath test

after the officer had read him his implied consent rights. Based on Monroe’s driving

as well as the horizontal gaze nystagmus evaluation, the officer arrested Monroe for

driving under the influence of alcohol. After Monroe’s arrest, the sergeant searched

Monroe’s car and found a glass filled with ice and a dark liquid that smelled like an

alcoholic beverage.

      This evidence was sufficient for the jury to find beyond a reasonable doubt that

Monroe was guilty of driving under the influence of alcohol to the extent that he was

a less safe driver, speeding, failure to maintain lane, and driving while possessing an

open container of an alcoholic beverage. OCGA §§ 40-6-391 (a) (1); 40-6-181; 40-6-

48 (1); 40-6-253 (b); Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560)

(1979).

      2. Prior DUI conviction.

      Monroe argues that the trial court erred by admitting evidence of his prior DUI

conviction. The trial court admitted the evidence both under OCGA § 24-4-417 (a)

(1) on the ground that it was relevant to prove knowledge and under OCGA § 24-4-

404 (b) on the ground that it was relevant to show his intent.

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      First, Monroe argues that OCGA § 24-4-417 (a) (1) is unconstitutionally vague.

But Monroe has failed to point to any place in the record where the trial court

distinctly ruled on his constitutional challenge. Therefore, the constitutional challenge

was not preserved for appeal. See Focus Entertainment Intl. v. Bailey, 256 Ga. App.

283, 284 (568 SE2d 183) (2002).

      Monroe also argues that admission of this evidence violated his Fifth

Amendment right not to incriminate himself. He seems to argue that if the evidence

of his prior DUI conviction was admissible to prove knowledge or intent, then its

admission required him to testify to explain his lack of knowledge or intent. But

Monroe

      cites no authority to support his argument that adverse evidence must be
      excluded because its admission might impact a defendant’s decision to
      testify. To the contrary, even if [Monroe] was forced to choose between
      asserting a defense based upon his own testimony or remaining silent,
      that is a choice that is inherent in any defendant’s decision whether to
      testify or not, and that does not violate a defendant’s constitutional
      rights.


Whitman v. State, 316 Ga. App. 655, 660 (729 SE2d 409) (2012) (citations and

punctuation omitted).



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      Monroe claims that the admission of his prior DUI conviction amounted to

double jeopardy. But he failed to support this claim with citation of authority or

argument and thus has abandoned it. Court of Appeals Rule 25 (c) (2). In any event,

double jeopardy “prevents successive prosecutions for the same offense[;] it does not

prevent prosecutions for offenses which are separate and similar to a prior prosecuted

offense.” Loden v. State, 199 Ga. App. 683, 689 (6) (406 SE2d 103) (1991) (citations

omitted; emphasis in original).

      Monroe argues that the trial court erred in admitting his prior DUI conviction

under OCGA § 24-4-417 (a) (1) as relevant to prove knowledge and under OCGA §

24-4-404 (b) as relevant to prove intent. He argues that the fact he was previously

convicted of DUI is not relevant to his knowledge or intent. We disagree.

      OCGA § 24-4-417 (a) (1) provides in pertinent part that in DUI prosecutions,

evidence of the commission of another DUI “on a different occasion by the same

accused shall be admissible when: (1) [t]he accused refused in the current case to take

the state administered test required . . . and such evidence is relevant to prove

knowledge . . . .” (emphasis added). The statute “contains a presumption in favor of

the admission of [such] evidence.” State v. Frost, 297 Ga. 296, 302 (773 SE2d 700)

(2015) (citation omitted). Proof of Monroe’s prior DUI conviction could strengthen

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the inference that the fact-finder could draw from Monroe’s refusal to take the state-

administered test this time, that had he done so, it would have shown the presence of

alcohol. Id. at 304. “This is so because . . . it might properly be inferred from evidence

of prior occasions on which the accused had driven under the influence that the

accused had an awareness that his ingestion of an intoxicant impaired his ability to

drive safely.” Id. Monroe has not shown that the trial court abused his discretion in

finding that the prior DUI was relevant to prove knowledge. And because the

statutory conditions obtained, the court did not err in admitting the prior DUI under

OCGA § 24-4-417 (a) (1).

      Nor has Monroe shown that the trial court erred in admitting his prior DUI

conviction under OCGA § 24-4-404 (b) as relevant to show intent. State v. Jones, 297

Ga. 156 (773 SE2d 170) (2015). “[B]ecause the same state of mind was required for

committing the prior act and the charged crime[], i.e., the general intent to drive while

under the influence of alcohol, evidence of [Monroe’s] prior conviction was relevant

under Rule 404 (b) to show [his] intent on this occasion.” Jones, 297 Ga. at 160-161

(2) (citations and footnote omitted). Monroe has not shown that the trial court clearly

abused his discretion in admitting this evidence under OCGA § 24-4-404 (b). Id. at



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159 (1) (citations omitted) (“A trial court’s decision to admit other acts evidence will

be overturned only where there is a clear abuse of discretion.”).

      3. Demonstrative evidence.

      Monroe argues that the trial court erred by allowing the state to admit certain

demonstrative evidence: video clips showing three types of horizontal gaze

nystagmus. The state introduced the video clips to show the jury what nystagmus

looks like while the arresting officer was testifying about conducting the horizontal

gaze nystagmus evaluation of Monroe. The officer testified that Monroe demonstrated

all three types of nystagmus shown in the video clips.

      Demonstrative evidence . . . must be relevant, see OCGA § 24-4-401,
      and it may be excluded if its probative value is substantially outweighed
      by the danger of unfair prejudice, confusion of the issues, or misleading
      the jury, or by considerations of undue delay, waste of time, or needless
      presentation of cumulative evidence, see OCGA § 24-4-403.
      Demonstrations are also subject to the reasonable control of the trial
      court. See OCGA § 24-6-611.8


Smith v. State, 299 Ga. 424, 434-435 (3) (b) (788 SE2d 433) (2016) (footnote

punctuation omitted). The trial court has wide discretion to admit demonstrative

evidence, and



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      [t]he burden is on the party offering [demonstrative evidence] to lay a
      proper foundation establishing a similarity of circumstances and
      conditions. Although the conditions of the demonstration need not be
      identical to the event at issue, they must be so nearly the same in
      substantial particulars as to afford a fair comparison in respect to the
      particular issue to which the [demonstrative evidence] is directed.
      Further, experimental or demonstrative evidence, like any evidence
      offered at trial, should be excluded if its probative value is substantially
      outweighed by the danger of unfair prejudice, confusion of the issues,
      or misleading the jury.


Id. at 435 (3) (b) (citation and punctuation omitted). Here, the officer’s testimony

made clear that the video clips were not of Monroe, but that in the “substantial

particulars,” the conditions of the video clips and his observations of Monroe were

similar: both showed the same kind of nystagmus. Monroe has not shown that the trial

court abused his discretion in admitting this demonstrative evidence.

      4. Open container.

      Monroe argues that the trial court erred by allowing the sergeant and arresting

officer to testify that they observed in Monroe’s car an open container that was full

of ice cubes and a dark liquid with the distinct odor of alcohol. He argues that the

testimony was inadmissible because the state did not preserve the actual open

container. He cites State v. Miller, 287 Ga. 748 (699 SE2d 316) (2010), which

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concerns “the proper standard for analyzing whether the destruction of potentially

exculpatory evidence rises to a violation of due process.” Id.

      In determining whether the state’s failure to preserve evidence which might

have exonerated the defendant amounts to a constitutional violation,

      a court must determine both whether the evidence was material and
      whether the police acted in bad faith in failing to preserve the evidence.
      To meet the standard of constitutional materiality, the evidence must
      possess an exculpatory value that was apparent before it was destroyed,
      and be of such a nature that the defendant would be unable to obtain
      comparable evidence by other reasonably available means.


Id. at 754 (citation omitted). A claim based on the state’s destruction of evidence “can

be successful only if [Monroe] shows that the evidence was material and that the

police acted in bad faith in failing to preserve it.” Doyal v. State, 287 Ga. App. 667,

671 (6) (653 SE2d 52) (2007) (citation and punctuation omitted; emphasis added).

Pretermitting whether the open-container evidence possessed an apparent exculpatory

value so as to make it constitutionally material, Monroe has not shown that the police

acted in bad faith in failing to preserve it. Id. Cf. Champion v. State, 260 Ga. App. 12,

14-15 (2) (579 SE2d 35) (2003) (rejecting contention of accountant charged with

“manipulation of deposit records” to facilitate stealing cash that lost financial records


                                           9
were material because they “would have shown that certain expenses were paid in

cash and thereby explained the missing money”). So he has not shown that the trial

court erred by allowing the officers to testify about this evidence.

      Judgment affirmed. Miller, P. J., concurs. McMillian, J., concurs fully in

Divisions 1,2, and 3, and in the judgment only as to Division 4.




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