Adams v. State
| Decision Date | 27 March 2007 |
| Docket Number | No. A06A2124.,A06A2124. |
| Citation | 644 S.E.2d 426 |
| Parties | ADAMS v. The STATE. |
| Court | Georgia Court of Appeals |
David J. Walker, Jonesboro, for appellant.
Jewel C. Scott, District Attorney, Anece Baxter White, Assistant District Attorney, for appellee.
Glenn Edward Adams was charged with burglarizing four daycare centers. At trial, the state elected not to proceed on one of the charges, the court directed a verdict for Adams on two of the charges, and the jury found him guilty on the remaining charge. Adams claims that the trial court erred by (1) denying his motion for directed verdict on the final burglary charge, (2) allowing an exhibit to remain with the jury during deliberations, (3) allowing the state to introduce a misdemeanor conviction as impeachment evidence, and (4) failing to charge on a lesser included offense. We conclude that the trial court erred by allowing the state to use the former conviction for impeachment purposes, but find that the error was harmless. We find no merit in Adams's other claims. Therefore, we affirm.
Adams was convicted of burglarizing the Clayton County Headstart Center. Viewed in the light most favorable to the verdict, the evidence related to that burglary showed that on the morning of July 17, 2003, an employee opened the Headstart Center and noticed that a window had been "broken into." The employee did not notice if anything was missing, but did testify that a toy mop that was usually inside was outside.
John Patterson with the Clayton County Sheriff's Office responded to the call at the Headstart Center. Patterson took a swabbing of dried blood found on the interior window ledge. Based on information obtained about the other daycare center burglaries, Adams was identified as a suspect, and, pursuant to a search warrant, a sample of Adams's blood was taken. A forensic biologist with the Georgia Bureau of Investigation (GBI) was given the swabbing from the window ledge and Adams's blood sample and asked to analyze DNA. He testified that the results of his testing showed that the DNA taken from the window ledge originated from Adams "or his identical twin." Adams did not challenge the procedures used in or the results obtained from the DNA analysis.
1. Adams claims that the trial court erred by denying his motion for directed verdict. He argues that there was no evidence that any property was stolen from the premises and no evidence of his intent to commit a theft.
The standard of review for the denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction.1
On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. As an appellate court, we do not weigh the evidence, judge the credibility of witnesses, or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.2
A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within a building or any room or part thereof.3 "To complete the crime of burglary, it is not necessary that a defendant actually commit a completed theft; it is sufficient if he enters without authority and with the intent to commit a theft or felony."4
Contrary to Adams's contention, the state was not required to show that valuables were present in the building to prove intent.5 Intent may be inferred from evidence that valuables were present, but criminal intent may also be inferred from other evidence.6
Intent may be found by the jury upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted. Whether a defendant has the requisite intent to commit a crime is a question for the jury.7
Here, Adams's blood, or that of his identical twin,8 was found on the interior window ledge of the building. Adams offered no explanation as to how his blood got there, but instead testified that he did not even know where the daycare center was located. Thus, a trier of fact could infer that Adams's blood was left at the time the daycare center was broken into.9 And even without evidence that anything was stolen, the jury could infer an intent to steal based on the evidence of an unlawful entry into a building housing an operating business.10 The evidence was sufficient to authorize a rational trier of fact to find Adams guilty of burglary beyond a reasonable doubt.11
2. Adams claims that the trial court erred by allowing state's Exhibit 13 to go out with the jury during deliberations. State's Exhibit 13 was an "Official Report" from the GBI Division of Forensic Sciences showing a list of DNA isolation procedures performed on the blood swabbing taken from the interior window ledge and Adams's blood sample, and the results of the tests performed on those samples.
At trial, Adams objected that allowing the exhibit to go out with the jury would violate the continuing witness rule.
In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.12
The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations.13
We have previously allowed test results to go out with the jury over similar objections.14 Consistent with our prior holdings, we conclude that the GBI's report was not subject to the objection made.
As a writing in proof of an act or transaction, the instant report was admissible as direct evidence of the manner in which a scientific test was conducted and of the results thereby obtained. The proscription on the jury's possession of "written testimony" does not extend to documents which are themselves relevant and admissible as original documentary evidence in a case.15
Thus, the trial court did not err by allowing the report to go out with the jury.16
3. Adams claims that the trial court erred by allowing the state to impeach his credibility with a misdemeanor conviction for theft by receiving stolen property.17 The trial court ruled that theft by receiving stolen property is an offense involving dishonesty within the meaning of OCGA § 24-9-84.1(a)(3), and Adams takes issue with that ruling.
OCGA § 24-9-84.1 was enacted in 2005 to establish guidelines for the use of criminal convictions to impeach witnesses or defendants who testify.18 Under paragraph (a)(3), "[e]vidence that any witness or the defendant has been convicted of a crime shall be admitted if it involved dishonesty or making a false statement, regardless of the punishment that could be imposed for such offense." Georgia appellate courts have not yet addressed which crimes involve "dishonesty" within the meaning of the statute.19
The General Assembly, in enacting the statute at issue, chose to use the language of the Federal Rules of Evidence Rule 609(a)(2).20 It is established in the United States Court of Appeals for the Eleventh Circuit that crimes such as theft, robbery, or shoplifting do not involve "dishonesty or false statement" within the meaning of Rule 609(a)(2).21 In United States v. Ashley,22 the United States Court of Appeals for the Fifth Circuit looked to the Conference Committee Notes in determining that shoplifting was not a conviction involving dishonesty or false statement within the meaning of Rule 609(a)(2). According to the Conference Committee Notes to the federal rule, crimes involving "dishonesty and false statement" include
crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully.23
"[I]n its broadest sense, the term `crimen falsi' has encompassed only those crimes characterized by an element of deceit or deliberate interference with a court's ascertainment of truth."24
Other federal circuits also have concluded that theft and similar crimes do not involve dishonesty within the meaning of Rule 609(a)(2) and therefore are not admissible for impeachment purposes.25 The focus of the federal appellate courts seems to be on the propensity for dishonesty on the witness stand.
State appellate courts with evidence rules similar to Rule 609(a)(2) are not so uniform in their approach to this issue. In Arizona,26 North Dakota,27 and West Virginia,28 prior convictions for theft by receiving stolen property are not admissible for impeachment purposes as crimes involving "dishonesty or false statement" within the meaning of those state's statutes. Other state courts also have refused to admit theft-related crimes because they are not crimes involving dishonesty.29 Many of these courts have adopted the reasoning of the federal courts that a crime of dishonesty is one that bears on a witness's propensity to testify truthfully or that involves some element of deceit or falsification.
However, in Illinois,30 Ohio,31 and Pennsylvania,32 courts have admitted prior convictions for theft by receiving stolen property for impeachment purposes as crimes involving "dishonesty" within the meaning of those state's statutes. And other states have admitted theft-related crimes based on a determination that they are crimes of dishonesty.33 In most of these cases, the courts offer no...
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