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29. POSSESSION OF OPEN CONTAINER Ayiteyfio v. State, 308 Ga.App. 286, 707 S.E.2d 186 (March 8, 2011). DUI and open container convictions were supported by sufficient evidence. “Challenging his conviction under [OCGA § 40-6-253(b)(1)(B)], Ayiteyfio argues that the State failed to demonstrate that the bottles found in his car actually contained alcohol. The arresting officer, however, testified that police located two partially filled bottles of vodka and one partially filled bottle of tequila in the vehicle. Photographs of the bottles showed them to be labeled vodka and tequila bottles. Given the officer's testimony, as well as the photographic evidence, the jury was authorized to conclude that the partially-filled bottles held alcohol. See Yates v. State, 263 Ga.App. 29, 30(1) (587 S.E.2d 180) (2003).” Brogdon v. State, 299 Ga.App. 547, 683 S.E.2d 99 (August 5, 2009). “Although not argued by Brogdon, we point out that the sentence imposed on the open container conviction must be vacated because the statute provides that the maximum fine for violating the statute shall not exceed $200, [fn: See OCGA § 40-6-253(c). See also Chastain v. State, 231 Ga.App. 225, 228(4) (498 S.E.2d 792) (1998) (trial court erred in sentencing defendant to 12 months probation for violating the open container law) ] and Brogdon was sentenced to serve 12 months on this count.” Affirmed on other grounds, 287 Ga. 528, 697 S.E.2d 211 (July 12, 2010). Kalb v. State, 276 Ga.App. 394, 623 S.E.2d 230 (November 16, 2005). “Kalb contends that no evidence was presented that showed that he possessed an open container of alcoholic beverages within the meaning of the code section because the officer testified that the opened beer bottle in the car was empty. Moreover, he asserts on appeal that he was not charged with drinking while driving and that no evidence shows that he consumed an alcoholic beverage within Cobb County. Conviction of possessing an open container under OCGA § 40-6-58(a)(2) requires proof that the container contains ‘any amount of alcoholic beverage,’ OCGA § 40-6-58(a)(2)(A), and that the container is open or has a broken seal, OCGA § 40-6-58(a)(2)(B)(i) or that the contents of the container are partially removed. OCGA § 40-6- 58(a)(2)(B)(ii). Even though the officer’s testimony on cross-examination established that the bottle was empty and did not contain anything when Kalb was stopped, Kalb’s statement to the officer that he consumed the beer while driving is proof that the bottle contained an alcoholic beverage. From this evidence the jury could infer that the bottle contained an alcoholic beverage while Kalb was driving in Cobb County.” Yates v. State, 263 Ga.App. 29, 587 S.E.2d 180 (September 2, 2003). Testimony that “there was a open bottle of beer,” in the vehicle is sufficient to prove an open container, since “‘of’ can mean ‘containing’ or ‘carrying.’” Wynn v. State, 236 Ga.App. 98, 511 S.E.2d 201 (January 26, 1999). “OCGA 40-6-253(b) ... provides in relevant part that ‘(n)o person shall possess an open container of any alcoholic beverage while operating a vehicle in this state.’ (Emphasis supplied.) As discussed in Miller v. State, 202 Ga.App. 414, 414 S.E.2d 326 (1992), the term ‘operating a vehicle’ includes being in actual physical control of the vehicle regardless of whether the vehicle is driven. While defendant was not seen driving the vehicle, the totality of the circumstances, including the location of the car and defendant’s position in the car, indicate that defendant was in actual physical control of the vehicle and in possession of an open container of an alcoholic beverage.” 30. RECKLESS DRIVING New case! Whaley v. State, A16A0569, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 2339714 (May 4, 2016). Reckless driving conviction reversed; “the State failed to prove that Whaley committed reckless driving in the manner alleged in the indictment. More specifically, there was no evidence presented at trial that Whaley ran several red lights at a high rate of speed while driving the victim’s car. ‘While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. If the indictment sets out the offense as done in a particular way, the proof must show it so [.] No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid[.]’ (Footnote omitted.) Ford–Calhoun v. State, 327 Ga.App. 835, 836(1), 761 S.E.2d 388 (2014).” McNeely v. State, 296 Ga. 422, 768 S.E.2d 751 (January 20, 2015). Evidence supported passenger’s convictions as a party to felony murder, fleeing and eluding, reckless driving, and related offenses. Contrary to defendant’s assertion, convictions weren’t based solely on testimony of accomplice/driver, but were supported by at least slight circumstantial evidence. Driver was recklessly speeding away from officers pursuing defendant, who had been caught shoplifting. Defendant assaulted an officer in her escape, and was on parole for prior shoplifting offenses. These circumstances