Bryan v. State, s. 51292

• Decision Date: 05 January 1976
• Docket Number: 51293,No. 2,Nos. 51292,s. 51292,2
• Parties: Jack BRYAN v. The STATE. Richard CLAY v. The STATE
• Court: Georgia Court of Appeals

Page 219

223 S.E.2d 219

137 Ga.App. 169

Jack BRYAN v. The STATE.

Richard CLAY v. The STATE.

Nos. 51292, 51293.

Court of Appeals of Georgia, Division No. 2.

Jan. 5, 1976.

Steven E. Fanning, Newnan, for appellants.

William F. Lee, Jr., Dist. Atty., Newnan, for appellee.

CLARK, Judge.

Appellants Bryan and Clay were jointly indicted on three counts of burglary and tried jointly before a jury in separate trials for each count. (Appellant Clay's brother was also indicted on one of these counts, to which he pleaded guilty.) Both appellants were found guilty of each of the three counts. They now appeal from the judgment, enumerating similar errors regarding the court's refusal to suppress items seized from Bryan's property and from Clay's car, the overruling of motions for directed verdict as to one of the counts, the correctness of jury instruction, and the overruling of objections to allegedly improper remarks of the district attorney. Held:

1. The overruling of appellants' motions to suppress raises several questions for determination.

( A) Did the warrant describe with sufficient particularity the object of the search? The warrant was directed at the premises of appellant Bryan, 'located at 11th residence on right going North on Bogger Bottoms Road off Ga. 85. Cream colored mobile home with brown trim and wood front porch.' We conclude that the premises were described 'with such particularity as to enable a prudent officer executing the warrant to locate the person and place definitely and with reasonable certainty, without depending upon his discretion.' Jones v. State, 126 Ga.App. 841, 842, 192 S.E.2d 171, 173. Appellants' contention that the document is a 'general warrant' is without merit. Jackson v. State, 129 Ga.App. 901, 201 S.E.2d 816; Grant v. State, 130 Ga.App. 237, 202 S.E.2d 675.

( B) Did probable cause exist for the issuance of the warrant? The affidavit's recitation that the informer has given information in the past and that this information has led to arrests and convictions satisfies the required showing as to the informer's reliability. Sams v. State, 121 Ga.App. 46, 172 S.E.2d 473; Tomblin v. State, 128 Ga.App. 823, 198 S.E.2d 366; Currington v. State, 129 Ga.App. 161, 199 S.E.2d 268. While the affidavit fails to set forth any of the underlying circumstances concerning the source of the informer's information, the affiant testified at the suppression hearing that the informer had seen the stolen items on Bryan's property and that he knew the merchandise to be stolen because of the large number of similar or identical items. This information, which was provided to the issuing magistrate, satisfies the second requirements of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723. See Campbell v. State, 226 Ga. 883, 178 S.E.2d 257; Johnston v. State, 227 Ga. 387, 181 S.E.2d 42. The trial court did not err in ruling that the warrant was issued upon a proper finding of probable cause.

( C) Did the officers, in executing the warrant, impermissibly seize items from areas beyond the scope of the warrant? '(A) search warrant for the home of a named individual at a particular location includes authority to search the curtilage. (Cits.)' Moon v. State, 120 Ga.App. 141, 144, 169 S.E.2d 632, 636. The seizure of items within the curtilage of Bryan's residence was proper and not impermissible in scope. Appellants also contend that certain items were seized in areas beyond the curtilage of Bryan's residence. It is not clear from the record, however, which particular items were seized in this area or whether any of these items were introduced in evidence. In any event, no objection to the admission of any of the items was made on this basis. Appellants therefore waived any objection to admissibility on this ground.

( D) Did the officers have authority to seize items from Clay's automobile, which was parked on Bryan's property? Since the trunk of this vehicle was open and various items were in the officer's plain view, we answer this question affirmatively. It has many times been recognized that officers are not required to ignore that which is in plain view and readily observable. Scott v. State, 122 Ga.App. 204, 206, 176 S.E.2d 481. As the officers were lawfully executing a warrant, and thus were entitled to be on Bryan's property, the plain view doctrine affords a proper basis for sustaining the seizure of the goods in Clay's car. Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726); Lewis v. State, 126 Ga.App. 123, 190 S.E.2d 123; Boyd v. State, 133 Ga.App. 136, 210 S.E.2d 251. The trial court's refusal to suppress the seized items was not erroneous for any of the reasons urged.

2. Appellants enumerate error on the overruling of their motions for directed verdict with respect to their convictions arising out of the burglary of a storage shed owned by Irene Pratt (Case No. 793, Page 133, Count II). Allen Pratt testified that his mother's shed had been broken into and that several tools and a chain saw had been stolen. Sheriff Branch stated that Pratt's chain saw was found at Bryan's residence in his barbecue pit. This was the only item recovered from the theft. Clay's brother pleaded guilty to this burglary and, in a statement given to Sheriff Branch, he said that Bryan had participated in the burglary, but that he was not sure whether appellant Clay was also present. Clay's brother also testified at trial, stating that Bryan was passed out from intoxication in his car during the burglary and that Clay was not with them. Clay denied participation in the burglary and Bryan testified that he was too drunk to remember what he did that day.

Where, in a criminal case, there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom, shall demand a verdict of acquittal as a matter of law, it is incumbent upon the trial judge to grant a motion for a directed verdict of acquittal and his failure to do so constitutes reversible error. Merino v. State, 230 Ga. 604, 198 S.E.2d 311.

( A) As to appellant Clay, we think it clear that the evidence was insufficient to support his conviction. The only item recovered from the burglary was the chain saw found at Bryan's residence and in Bryan's sole possession. While Clay's car was parked on Bryan's property and was filled with other stolen items, Clay was not shown to have possessed any of the fruits of the Pratt burglary. The only evidence linking Clay to this burglary was the statement of his brother, who pleaded guilty to the offense, that he was 'unsure' as to whether Clay was with him during his commission of the crime. This statement does not constitute even a shred of evidence and, without more, raises no issue as to Clay's guilt. The trial court erred in refusing to direct a verdict of acquittal for appellant Clay on this count.

( B) The State's case against Bryan rests on more solid ground. His possession of the stolen chain saw together with the evidence of his presence at the scene of the crime was sufficient to authorize the conviction. 'Where stolen goods are found in the possession of the defendant charged with burglary, recently after the commission of the offense, that fact would authorize the jury to infer that the accused was guilty, unless he explained his possession to their satisfaction.' Mathews v. State, 103 Ga.App. 743, 120 S.E.2d 359, 360; Myerholtz v. State, 109 Ga.App. 352, 136 S.E.2d 165. The evidence presented satisfied the requirements of the circumstantial evidence rule and raised a question of guilt that properly was submitted to the jury for determination. Harvey v. State, 111 Ga.App. 279, 141 S.E.2d 604; Brown v. State, 125 Ga.App. 300, 187 S.E.2d 301.

3. Appellants enumerate several errors upon that portion of the jury charge concerning recent possession of stolen goods. It is contended that the charge is an erroneous statement of the law and that it is burden-shifting. However, the instruction given is substantially the same as the charges approved in Sanford v. State, 129 Ga.App. 357(2), 199 S.E.2d 560, Knowles v. State, 124 Ga.App. 377, 378(3), 183 S.E.2d 617, and Craft v. State, 124 Ga.App. 57, 59(6), 183 S.E.2d 37. See also Byrd v. Hopper,234 Ga. 248, 215 S.E.2d 251. The jury was properly instructed as to the defendants' presumption of innocence and the State's burden of proof. In addition, the definition given as to actual and constructive possession is correctly stated and nearly identical to the language approved in Lee v. State, 126 Ga.App. 38(2), 189 S.E.2d 872. These enumerations are therefore without merit.

4. Clay's brother...