Bogan v. State
| Decision Date | 30 January 1986 |
| Docket Number | No. 71761,71761 |
| Citation | 177 Ga.App. 614,340 S.E.2d 256 |
| Parties | BOGAN v. The STATE. |
| Court | Georgia Court of Appeals |
Robert M. Bearden, Jr., Macon, for appellant.
Willis B. Sparks III, Dist. Atty., Robin B. Odom, Asst. Dist. Atty., for appellee.
The defendant, Gregory Bogan, appeals his conviction of the offenses of burglary, possession of burglary tools, and possession of firearms by a convicted felon. On the evening of December 31 and morning of January 1, 1985, the sporting goods shop of Valley Outdoors, in Fort Valley, Georgia, was burglarized and different weapons were taken.
Charlie Rogers entered a plea of guilty to the burglary and testified for the state. He said he, the defendant, and Kenny Solomon came to Fort Valley from Perry, Georgia. Solomon used a sledge hammer to make a hole in the wall in the Valley Outdoors building. He was the lookout and Bogan stayed in the car. Because Solomon was making so much noise, Rogers left and went to the car where Bogan was waiting. When no police came, they returned to the store. Bogan went into the store and the burglar alarm went off. Everyone ran but when no police showed up, Bogan and Rogers returned to the store and Bogan went into the building and threw some rifles out. Rogers hid two of the rifles behind the courthouse. He saw Bogan hide three rifles. Rogers said neither he nor Bogan took any pistols. Bogan and Rogers returned to the car and located Solomon, who told them where he had hidden some pistols. They retrieved the pistols and then were arrested. Only Bogan, Solomon and himself were involved. There was no fourth person.
Sgt. Craig Gilchrist, along with Officers Bickley and Smith, of the Fort Valley Police department, responded to the burglar alarm and found a hole in the wall made by the burglars. They had seen a man in a pink shirt, carrying a brown paper bag, walking on Anderson Avenue. They started circling the area and found a car with a man in a pink shirt in the back seat of a car. The car was driving on the wrong side of the street. The officers stopped the car and asked the driver for his license. He did not have one. Officer Bickley looked into the car and saw "some handguns in the floorboard of the car." The defendants were arrested and a search of the car revealed a brown paper bag with several handguns. The handguns were identified by the owner of Valley Outdoors as some of those weapons taken from his store on January 1st.
Defendant Bogan denied his guilt and admitted that the sledge hammer found in his car was one he had borrowed "from somebody" because he does "odd jobs." He had driven to Fort Valley to "pick up a dude" and could not locate him. He saw Rogers and Solomon and picked them up. Rogers told him to stop at a red light and "another guy" got in his car with a sack. When the police stopped them, this "dude jumped out and ran." His name was "Red." He was not aware the store had been burglarized until the police found the weapons and the sledge hammer in his car. Solomon testified that he came to Fort Valley with Bogan "to party." They visited a couple of night clubs and then looked for Rogers. Solomon used the restroom at McDonald's and started walking down the street when Bogan came by in a car with Rogers. There was a sack on the floor when he got in. He told them they were "going to get caught or something...." He was in the car for only a few minutes when the police arrested them. The guns were in the car when he got in. Solomon testified there was no fourth person; Bogan was mistaken. Bogan brings this appeal. Held:
1. The defendant alleges error in the refusal of the trial court to sever the charge of possession of a firearm from the remaining charges. In Head v. State, 253 Ga. 429, 322 S.E.2d 228, the defendant was charged with the offenses of armed robbery and possession of a firearm by a convicted felon. The "only" evidence linking Head to the event was the testimony of the victim. The state introduced evidence of prior felony convictions, aggravated assault and armed robbery, to sustain their burden of proof on the possession of a firearm by a convicted felon. "There were no limitations imposed by the trial court as to the use to which the jury properly might put the evidence of prior convictions...." Id. at 431, 322 S.E.2d 228. The Supreme Court reversed the conviction because they could not say "with certainty that Head's conviction for robbery was not unduly influenced by evidence of his prior criminal record." Id. However, in Stone v. State, 253 Ga. 433, 321 S.E.2d 723, a similar error did not require reversal because of the overwhelming evidence of guilt.
We find no error for two reasons. First, when the trial court admitted the evidence of the prior felony convictions, he instructed the jury of the limited purpose of the permissible use of the evidence. Again, in the charge to the jury after the close of the evidence, he also instructed the fact finders of the restricted use of the prior felony convictions. Hence, Head, supra, is distinguishable on its facts. Secondly, the evidence of guilt of the defendant is overwhelming, i.e., a co-accused testified as an eyewitness to the events, another co-defendant said Bogan was mistaken in his testimony, and a portion of the stolen goods was found in his car in the area where the burglary occurred.
2. It was not error for the trial court to refuse to charge the jury they could not convict the defendant of possession of a firearm by a convicted felon if they also convicted him of the burglary offense. The leading case on the question of what offenses an accused may be convicted and punished for multiple offenses arising from the same criminal conduct is State v. Estevez, 232 Ga. 316, 206 S.E.2d 475. Therein, the Supreme Court found that our code, OCGA §§ 16-1-6 and 16-1-7, "expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions." Id. at 317, 206 S.E.2d 475. They found two restrictions: first, the limitation upon multiple prosecutions for crime arising from the same criminal conduct, and second, the limitation upon multiple convictions or punishment that could be imposed for such crimes. Here, we are not involved with multiple prosecutions. We are concerned with whether the state may convict and punish an accused for the offense of burglary and for unlawful possession of a firearm by a previously convicted felon, when the firearm was taken in the burglary.
OCGA § 16-1-6 proscribes conviction of greater and lesser included offenses. It is clear that neither offense charged here is the lesser included of the other. Neither offense may be established by proof of the same or less than all the facts which establish the other offense, nor is a less culpable mental state required to establish the other offense. For example, it is not an element of burglary that the actor must have been convicted of a prior felony, which is required in the other offense. Neither is it an element of possession of a firearm by a convicted felon that he did, without authority, and with intent to commit a theft or felony, enter or remain within a dwelling, or other vehicle or structure enumerated in OCGA § 16-7-1. See Sanford v. State, 169 Ga.App. 769, 315 S.E.2d 281.
Hence, we turn to the test legislated for determination of whether these offenses are the "same conduct." OCGA § 16-1-7. There is a difference in the proscribed conduct of these offenses. Burglary deals with the unlawful intrusion into another's property with the specific intent to commit a theft or a felony. See Ealey v. State, 139 Ga.App. 604, 606, 229 S.E.2d 86. The prohibition of the receipt, possession, or transportation of a firearm by a convicted felon is covered by OCGA § 16-11-131. A lesser degree of culpability is not involved, for one of these crimes does not prohibit general conduct while the other prohibits specific conduct. Estevez, supra, 232 Ga. at 320, 206 S.E.2d 475. And, each crime has a distinctive element which distinguishes it from the other. State v. Hightower, 252 Ga. 220, 222, 312 S.E.2d 610. In the illegal possession of a firearm it must be proved that the accused was a convicted felon. In burglary, it must be proved that entry was made with intent to commit a theft or a felony. Nor do we find merger of these offenses. Although the Supreme Court has held that an accused cannot be convicted of an armed robbery where the offensive weapon used to perpetrate the robbery is also the only fruit of the armed robbery (Rivers v. State, 250 Ga. 288, 293-294, 298 S.E.2d 10), those facts do not pertain here. Admittedly, the weapons possessed or transported by Bogan were the fruit of the burglary, the burglary was complete before the rifles or pistols came into the possession of...
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...pleadings. Since the second section, OCGA § 24-4-24, was not raised below, it will not be addressed on appeal. Bogan v. State, 177 Ga.App. 614, 619(5), 340 S.E.2d 256 (1986). This Bankers' affidavit, then, did not constitute a waiver by Interstate of sufficiency of service on (b) We address......
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