Abernathy v. State, A94A1276

• Decision Date: 03 August 1994
• Docket Number: No. A94A1276,A94A1276
• Citation: 448 S.E.2d 30,214 Ga.App. 364
• Parties: ABERNATHY v. The STATE.
• Court: Georgia Court of Appeals

Page 30

448 S.E.2d 30

214 Ga.App. 364

ABERNATHY v. The STATE.

No. A94A1276.

Court of Appeals of Georgia.

Aug. 3, 1994.

Scott J. Forster, Calhoun, for appellant.

Willis M. Abernathy, pro se.

T. Joseph Campbell, Dist. Atty., Rebecca B. Tierce, Mickey R. Thacker, Asst. Dist. Attys., for appellee.

McMURRAY, Presiding Judge.

Defendant was charged, via indictment, with burglary and possession of a firearm by a convicted felon. The evidence at a jury trial shows the following: The victim reported a burglary of his family homeplace after he "saw this brown station wagon sitting in the drive; and ... noticed [defendant] coming in and out of the bushes with his arms loaded.... [T]he rear of the station wagon was open, and [defendant] was placing items in there." Officer Johnny Richards of the Gordon County Sheriff's Department responded and found "a station wagon car backed up to the front of the residence." Defendant "was sitting behind the steering wheel on the driver's side." Items found in the defendant's pockets and in the station wagon were identified by the victim as family property which had been removed "[f]rom the residence and the storage building there[,]" without permission or authority. The police recovered "[a] small caliber handgun" from the passenger-side floorboard of defendant's station wagon.

Defendant was found guilty of burglary and possession of a firearm by a convicted felon. This appeal followed the denial of defendant's motion for new trial. Held:

1. In his first enumeration, defendant contends the evidence is insufficient to support either conviction. Specifically, he argues that the evidence shows only his mere presence at the scene and that the State did not disprove every reasonable hypothesis save that of his guilt.

" '[R]ecent possession of stolen goods will not automatically support a guilty verdict for theft or burglary under the Jackson v. Virginia [, 443 U.S. 307 (99 SC 2781, 61 LE2d 560) ] standard in every case. Instead, recent possession is to be viewed as probative evidence of the crime, see 1 Wigmore on Evidence § 152 (3d ed. 1940), and reviewed along with the other evidence in the case to determine whether any rational juror could find the defendant guilty beyond a reasonable doubt.' [Cit.]" Bankston v. State, 251 Ga. 730, 731, 309 S.E.2d 369. " '(W)hether or not a defendant's explanation of his possession of the stolen property is satisfactory or reasonable is a question for the jury. (Cit.)' Brown v. State, 157 Ga.App. 473, 474(1) (278 SE2d 31) (1981)." Williams v. State, 205 Ga.App. 397(1), 422 S.E.2d 438. In the case sub judice, the jury was authorized to disbelieve defendant's explanation for his presence at the scene in possession of the stolen property and also disbelieve his explanation of why a gun was inside his vehicle. See, e.g., Howard v. State, 186 Ga.App. 7, 366 S.E.2d 369. Evidence that defendant was caught "red-handed" with items stolen from the victim's homeplace is sufficient to authorize the jury's finding that defendant is guilty, beyond a reasonable doubt, of burglary as charged in the indictment. Shaw v. State, 211 Ga.App. 647(1), 648, 440 S.E.2d 245. Evidence that a "small caliber handgun" was found on the floor of his vehicle authorized the jury's finding that defendant is guilty, beyond a reasonable doubt, of possession of a firearm by a convicted felon. See Black v. State, 261 Ga. 791, 795(10), 410 S.E.2d 740.

2. In his second enumeration, defendant contends the trial court erred "in failing to grant a new trial because trial counsel was ineffective to the extent that [defendant's] due process rights were violated and he did not receive a fair trial."

"In order to preserve the issue of trial counsel's effectiveness for appellate review, 'a claim of ineffective assistance of counsel (must) be determined by means of an evidentiary hearing at the earliest practicable moment.' Ponder v. State, 260 Ga. 840, 841(1) (400 SE2d 922) (1991)." Duitsman v. State, 212 Ga.App. 348, 350(4), 441 S.E.2d 888. " '[W]here the issue of effectiveness is raised for the first time on appeal by an appellate attorney who did not represent the defendant at trial or on motion for new trial and who did not file an amended motion for new trial, a remand for hearing on the issue of effectiveness may be appropriate. Johnson v. State, 259 Ga. 428(3) (383 SE2d 115) (1989).' (Emphasis supplied.) Meders v. State, 260 Ga. 49, 55 (389 SE2d 320) (1990)." Owens v. State, 263 Ga. 99, 102(3), 428 S.E.2d 793.

In the case sub judice, defendant's trial attorney filed a timely motion for new trial on defendant's behalf, but he did not raise the issue of his own ineffectiveness in the motion for new trial. Further, there is no indication in the record that the issue of ineffective assistance of trial counsel was thereafter raised in the trial court via an amended motion for new trial or by an attorney (other than defendant's trial attorney) at the hearing on defendant's motion for new trial. The record shows only that the trial court entered an order denying defendant's motion for new trial on February 3, 1994, and that, on February 18, 1994, the attorney representing defendant on appeal (not defendant's trial attorney) filed a notice of appeal enumerating (in pertinent part) ineffective assistance of counsel. The State contends this enumeration presents nothing for review because defendant's...