Calhoun v. State, A94A1196

• Decision Date: 27 May 1994
• Docket Number: No. A94A1196,A94A1196
• Parties: CALHOUN v. The STATE.
• Court: Georgia Court of Appeals

Page 405

444 S.E.2d 405

213 Ga.App. 375

CALHOUN v. The STATE.

No. A94A1196.

Court of Appeals of Georgia.

May 27, 1994.

John L. Tracy, Albany, for appellant.

Britt R. Priddy, Dist. Atty., Gregory W. Edwards, Asst. Dist. Atty., for appellee.

BIRDSONG, Presiding Judge.

Willie Calhoun appeals his conviction of aggravated assault and theft by shoplifting. Held:

1. About one week after the averred shoplifting and aggravated assault incident, a tipster alerted the police as to appellant's identity as perpetrator, as to his whereabouts, and as to his attire. A police officer was dispatched to the scene in regard to a suspicious person wearing a blue outfit. Appellant was observed wearing blue and standing outside a convenience-type store. When asked why he was standing by the store, appellant replied he had been barred therefrom for suspected shoplifting; appellant then gave a false name to the officer. The officer left the scene, was informed that appellant had given him the wrong name, and that he was wanted for questioning in regard to an aggravated assault. Within approximately three minutes, the officer returned to the scene for the purpose of arresting appellant for giving a false name and aggravated assault. The officer arrested appellant on a false name charge. See OCGA § 16-10-25.

The trial court did not err in overruling appellant's motion for mistrial based upon the State's alleged injection of appellant's character in evidence by stating in opening argument and subsequently eliciting testimony that appellant gave a false name at the time of arrest. "Evidence regarding the circumstances of appellant's arrest was admissible, 'even though it may incidentally show the commission of another crime.' " Moulder v. State, 207 Ga.App. 335, 337(6), 427 S.E.2d 793. Evidence of appellant's use of a false name at the time of arrest was admissible (McFadden v. State, 171 Ga.App. 447, 448(1), 319 S.E.2d 878); the trial court did not err in denying appellant's motions for mistrial. Additionally, the ultimate arrest of appellant was inextricably linked to the initial report of the tipster identifying appellant as the perpetrator of the offenses at issue and giving appellant's attire and general location.

2. During cross-examination, a State witness gave a non-responsive answer to the question whether appellant threw a brick at anyone confronting him; the witness testified, without objection, that "if anybody had walked up there on him, he would have." " '[A]ll evidence is admitted as a matter of course unless a valid ... objection is [timely] interposed.' " Hite v. State, 208 Ga.App. 267, 269(1), 430 S.E.2d 125. Approximately two questions later, when appellant's counsel asked what appellant did with the brick, the witness testified, "well ... since nobody didn't come ... up there on him, he just put the brick down." At this point, appellant's counsel requested that the witness be "admonished" not to give an opinion as to the mental state of someone else. In a following colloquy, appellant attempted to clarify that he was posing an objection to opinion testimony regarding what someone else thought or might have done. The trial court did not expressly rule on appellant's restated objection, but did deny it by implication. At no time did appellant belatedly object to or move to strike the earlier elicited, albeit non-responsive, opinion testimony that appellant "would have" thrown the brick had anyone walked up on him. Assuming error occurred (compare Lester v. State, 75 Ga.App. 42, 59 (8), 42 S.E.2d 141), it was rendered harmless by the previously admitted evidence that appellant would have thrown the brick if anyone had walked up on him; the opinion testimony at issue is merely cumulative of testimony already in evidence. See Platt v. Nat. Gen. Ins. Co., 205 Ga.App. 705, 710(1), 423 S.E.2d 387. Additionally, as appellant's own trial procedure and conduct aided in causing the trial court's ruling, he cannot obtain relief therefrom on appeal. See Williams v. State, 205 Ga.App. 445, 446(2), 422 S.E.2d 309.

3. The State, over timely objection, argued that the jury did not know whether appellant would steal again if turned loose. This type of argument invites the jury to make predictions as to the consequences of its verdict when determining appellant's guilt or innocence, and tends to inject indirectly sentencing issues before the jury. Compare Walker v. State, 254 Ga. 149, 158(14), 327 S.E.2d 475 (dictum).

Examination of the isolated portion of the argument reported in the trial record reflects that at most it might tend to cause the jury to convict appellant for shoplifting to ensure that he would not "steal" again. We are satisfied beyond a reasonable doubt (see Palmer v. State, 186 Ga.App. 892, 897(3), 369 S.E.2d 38) that any error flowing from the State's argument to the jury did not impact on the verdict of guilty of aggravated assault. Therefore, in view of the disposition hereinafter taken as to the shoplifting conviction, any error flowing from the argument of the State would be harmless.

4. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 establishes the proper test for an appellate court to employ when sufficiency of the evidence is challenged by means of a motion for new trial which is denied. Daras v. State, 201 Ga.App. 512(1), 411 S.E.2d 367.

(a) Applying the test of Jackson v. Virginia, we find that the evidence is not sufficient to sustain appellant's conviction of shoplifting. " 'Hearsay evidence is without probative value and will not establish fact in issue even in the absence of a timely objection.' " Feagin v. State, 198 Ga.App. 460, 461 (1), 402 S.E.2d 80. The State attempted to establish by hearsay evidence that appellant took snuff from the store without paying for it. Although various store personnel testified, these were persons who merely had been told an act of shoplifting had occurred and who, as a result, followed appellant. The bare fact that appellant subsequently threw snuff on the ground does not establish that he had shoplifted it, especially when appellant was confronted by several persons demanding that he give back store merchandise. Nor did the State introduce any form of store business record to establish that the snuff had not been purchased. The affirmative response of the witness, Fletcher, to the leading question, "and again, it's your testimony that your products were in his hands," did not establish a theft occurred; at most, a reasonable inference could be drawn that the snuff had come from the store. Moreover, Fletcher testified that "when I was inside the store, we had a...