Barber v. State

• Citation: 288 S.E.2d 353,161 Ga.App. 435
• Decision Date: 01 March 1982
• Docket Number: No. 63116,63116
• Court: United States Court of Appeals (Georgia)
• Parties: BARBER v. The STATE.

Page 353

288 S.E.2d 353

161 Ga.App. 435

BARBER v. The STATE.

No. 63116.

Court of Appeals of Georgia.

March 1, 1982.

Carl Greenberg, Susan L. Frank, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Asst. Dist. Atty., Margaret V. Lines, Kenneth Marshall, Asst. Dist. Attys., Atlanta, for appellee.

CARLEY, Judge.

Appellant was indicted and tried for two counts of motor vehicle theft, former Code Ann. § 26-1813, and one count of theft by taking. He was convicted of one of the counts of motor vehicle theft and of the theft by taking count. He appeals.

1. Appellant enumerates the general grounds as error. The evidence was sufficient to establish that appellant was in recent possession of the vehicle and the property alleged in the indictment. In the absence of a satisfactory explanation "this evidence was sufficient in itself to support a conviction ... [Cits.] 'whether or not defendant's explanation of his possession was a satisfactory or reasonable one was a question for the jury. [Cit.]' [Cit.] Having reviewed the evidence in the light most supportive of the jury verdict, we conclude that a rational trior of fact could have found appellant guilty of motor vehicle theft [and theft by taking] beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)." Warfle v. State, 157 Ga.App. 196(1), 276 S.E.2d 689 (1981).

2. Appellant enumerates as error the denial of his motion to sever the two motor vehicle theft counts for separate trial, urging that they were joined solely because they charged offenses of the same or similar character. See Wigley v. State, 140 Ga.App. 145, 230 S.E.2d 108 (1976). Even assuming without deciding that the erroneous failure to grant a severance as to two counts of a multicount indictment would be harmful when, as here, there is an acquittal as to one of the counts, (compare Davis v. State, 159 Ga.App. 356, 283 S.E.2d 286 (1981)), there is no reversible error in this case. It appears that the two motor vehicle theft counts were joined and tried on the theory that they evidenced " 'a series of connected acts or constitut[ed] parts of a single scheme or plan.' [Cit.]" Johnson v. State, 158 Ga.App. 398, 399, 280 S.E.2d 419 (1981). The trial court did not err in denying appellant's motion to sever. Davison v. State, 158 Ga.App. 549(1), 281 S.E.2d 305 (1981); Green v. State, 159 Ga.App. 28(1), 283 S.E.2d 19 (1981).

Judgment affirmed.

DEEN, P. J., and BANKE, J.,...