Opinion
A90A0399.
DECIDED JUNE 26, 1990. REHEARING DENIED JULY 11, 1990.
Reckless conduct. DeKalb State Court. Before Judge Workman.
Millard C. Farmer, Jr., Joseph M. Nursey, for appellant.
Ralph T. Bowden, Jr., Solicitor, Ann M. Elmore, Assistant Solicitor, for appellee.
Appellant was convicted by a jury of reckless conduct (OCGA § 16-5-60 (b)). In his appeal, he contends that the trial court erred in failing to give a charge on circumstantial evidence and in restricting his counsel's closing argument. He also argues that the evidence was insufficient to support his conviction. Held:
1. Viewed in the light most favorable to the jury's verdict, the evidence adduced at trial reflects the following: Appellant and the victim had lived across the street from each other for approximately seven years, and had been engaged in a land line dispute for over a year. One evening, as the victim returned from her routine walk, appellant, who had been sitting in his truck in his driveway, pulled rapidly out of his driveway, accelerated toward the victim and slammed on his brakes stopping so close to the victim that she had to jump out of the way for fear that appellant would not stop. Appellant then said to the victim: "I will get you yet, you old bitch." The victim was noticeably shaken and frightened; and a neighbor who witnessed the incident called the police. Several days later, appellant boasted to another neighbor that he "did it because he was hot," and suggested to the neighbor that if he had wanted to kill the victim he could have. The evidence was sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of the crime charged. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560); compare Horowitz v. State, 243 Ga. 441 ( 254 S.E.2d 828).
2. Appellant contends that the trial court erred in not charging OCGA § 24-4-6, which provides: "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." "`An instruction on [OCGA § 24-4-6] is required only when the case is totally dependent upon circumstantial evidence.' [Cits.]" Arnett v. State, 245 Ga. 470 (4) ( 265 S.E.2d 771); Beard v. State, 193 Ga. App. 877 (2) ( 389 S.E.2d 384). In the instant case there was direct evidence that appellant drove his truck directly at the victim and stopped just short of striking her. Appellant, however, contends that since an essential element of reckless conduct is "consciously disregarding a substantial and unjustifiable risk," and the only evidence of this element was circumstantial, the trial court was required to give the charge. We disagree. In Lee v. State, 177 Ga. App. 8 ( 338 S.E.2d 445), this court recognized the line of cases supporting appellant's argument, including McGruder v. State, 213 Ga. 259 ( 98 S.E.2d 564), but found that Arnett v. State, supra, was binding precedent. We are satisfied that the pertinent principle of law contained in Arnett, supra, and Beard, supra, is controlling in view of the facts in this case, and find no basis for abandoning the legal precedent found therein. See generally State Farm c. Ins. Co. v. Astro Leasing, 194 Ga. App. 515, 518 ( 390 S.E.2d 885). Accordingly, we find no error with the trial court's failure to charge OCGA § 24-4-6.
3. During closing arguments, the trial court sustained the State's objection to defense counsel's comment about the State's failure to call the investigating officer as a witness. "As a general rule, `the defendant is not permitted to comment on the State's failure to produce certain witnesses.' [Cit.]" Braggs v. State, 189 Ga. App. 275 (3) ( 375 S.E.2d 464). We find no error with the application of the general rule in this case.
Judgment affirmed. Banke, P. J., and Cooper, J., concur.