Copeland v. State

• Decision Date: 06 February 2014
• Docket Number: No. A13A2070.,A13A2070.
• Citation: 325 Ga.App. 668,754 S.E.2d 636
• Parties: COPELAND v. The STATE.
• Court: Georgia Court of Appeals

325 Ga.App. 668

754 S.E.2d 636

COPELAND

v.The STATE.

No. A13A2070.

Court of Appeals of Georgia.

Feb. 6, 2014.

Christopher Reginald Geel, Atlanta, Lawrence Jason Zimmerman, for Appellant.

D. Victor Reynolds, Dist. Atty., Marietta, Amelia Greeson Pray, Asst. Dist. Atty., for Appellee.

McMILLIAN, Judge.

Calvin Copeland was found guilty by a jury of robbery by sudden snatching (OCGA § 16–8–40(a)(3)) and simple battery (OCGA § 16–5–23(a) (2)). Following a hearing, the trial court denied Copeland's motion for new trial. Copeland appeals, asserting the following enumerations of error: (1) the trial court erred in denying his motion to suppress his pre-trial identification, (2) the trial court incorrectly denied his request to charge the jury on the lesser included offense of theft by taking, and (3) the trial court failed to properly exercise its discretion in considering the general grounds asserted in his motion for new trial. For the reasons set forth below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict. Wallace v. State, 294 Ga.App. 159(1), 669 S.E.2d 400 (2008). So viewed, the evidence showed that around 7:15 p.m. on January 20, 2010, 72–year–old Bettie Renfro and her 74–year–old husband, Dewey Renfro, arrived at the Austin Avenue Baptist Church in Marietta, Georgia for the regular Wednesday evening service. The pastor of the church and his wife, Arthur and Gail Reese, arrived at approximately the same time. As the four individuals met up in the well-lit parking lot, they noticed a man walking up the street and briefly greeted him. The man was wearing white pants, a striped knit top, and carrying two fishing poles. The two couples then walked up the ramp to the front door of the church. As the pastor's wife unlocked the door, the man walked up the steps and grabbed Mrs. Renfro's purse. Mrs. Renfro was carrying her purse on her shoulder, and as the man grabbed it, the purse slid down her arm, and she tried to hold on to it. Mrs. Renfro testified at trial that this struggle “hurt [her] arm and [her] hand real bad, but [she] just tried to hold on as tight as [she] could.”

Mr. Renfro, who had walked up the ramp directly behind his wife, chased after the man. When Mr. Renfro yelled, “If you don't stop, I am going to shoot you,” the man dropped the purse and ran off but did not drop the fishing poles. Mr. Renfro retrieved the purse, and Mr. Reese drove and picked him up. Mrs. Reese called the police, and City of Marietta Police Officer Gowerek arrived soon after. The officer received a description of the purse-snatcher and drove in the direction in which the man fled. He soon came up on a male in white colored clothing carrying two fishing poles and upon questioning, identified him as Calvin Copeland. Copeland told the officer that he was fishing, but the officer did not know of any nearby fishing area and the fishing poles did not work. Since Copeland matched the description of the robber, Officer Gowerek drove Copeland back over to the church with the fishing poles in the trunk of his car. Once the officer parked the car in front of the church entrance, Mr. Renfro walked down the steps, looked through the car window and said, “That's him. That's the guy that took the purse.” Mrs. Reese agreed, “He had the same clothes on, the same face, it was him.” Copeland was thereafter indicted on one count of robbery by sudden snatching and one count of simple battery. A jury found him guilty on both counts, and Copeland moved for a new trial, which motion was denied, giving rise to this appeal.

1. On appeal, Copeland first asserts that the trial court erred in denying his motion to suppress any reference to Mr. Renfro's pre-trial identification of him by allowing the State to meet its burden through the testimony of the responding police officer. On appeal of the denial of a motion to suppress, we construe the facts in favor of the trial court's findings, uphold those findings unless clearly erroneous, and review de novo the trial court's application of law to the facts. See Hinton v. State, 321 Ga.App. 445, 449–450(2), 740 S.E.2d 394 (2013).

At the motion to suppress hearing, the State produced Officer Gowerek who testified regarding Mr. Renfro's identification of Copeland. Copeland maintains that the police officer's testimony was hearsay and should not have been considered by the trial court.¹ However, “at a suppression hearing, unlike most trials, the conduct and motives of the officers are at issue, and the court must look to the information available to the officer, including hearsay.” (Citation omitted.) McDaniel v. State, 263 Ga.App. 625, 627(1), 588 S.E.2d 812 (2003). “Accordingly, the trial judge may admit hearsay testimony at the hearing, giving it such weight and credit as he deems proper, although such evidence may not be admissible at trial.” Id. at 627–628, 588 S.E.2d 812. Therefore, it was not error for the trial court to receive hearsay evidence during the suppression hearing.²

2. In his second enumeration of error, Copeland contends that the trial court erred in failing to give a requested charge on the lesser included offense of theft by taking.³ “The complete rule with regard to giving a defendant's requested charge on a lesser included offense is: where the State's evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” (Citation and punctuation omitted.) Hunter v. State, 261 Ga.App. 276, 278(1), 582 S.E.2d 228 (2003).

Copeland relies on Merritt v. State, 139 Ga.App. 171, 228 S.E.2d 149 (1976) to argue that there is insufficient evidence of force here, such that the lesser offense of theft by taking should have been charged. However, his reliance is misplaced. As we have explained, “force is implicit in sudden snatching, both as a fact and as a legal proposition, the force being that effort necessary for the robber to transfer the property taken from the owner to his possession.” (Citation and punctuation omitted.) Brown v. State, 309 Ga.App. 511, 513(1), 710 S.E.2d 674 (2011). “Robbery by sudden snatching differs from theft by taking because the robbery offense requires proof of two additional elements: the thief must take the property from the victim's immediate presence, and the victim must be conscious of the theft at the time it is committed, in other words, before the taking is complete.” Bettis v. State, 285 Ga.App. 643, 646(3), 647 S.E.2d 340 (2007). “If the undisputed evidence shows that the victim realized the property was being taken away from her immediate presence while the theft was being committed, the offense was robbery, not theft by taking.” Id.

Here, the victim's testimony, discussed above, was sufficient to support a charge on robbery by sudden snatching. Moreover, the defense, as we can discern from the record, was that another individual committed the crime. Where “the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” (Citation and punctuation omitted.) Lupoe v. State, 284 Ga. 576, 577–578(2), 669 S.E.2d 133 (2008). Accordingly, we find no error in the trial court's refusal to give the requested jury charge on the lesser...