Dearmore v. State, A90A1414
| Decision Date | 12 September 1990 |
| Docket Number | No. A90A1414,A90A1414 |
| Citation | 196 Ga.App. 865,397 S.E.2d 200 |
| Parties | DEARMORE v. The STATE. |
| Court | Georgia Court of Appeals |
Michael P. Katz, Atlanta, for appellant.
Douglas C. Pullen, Dist. Atty., Bradford R. Pierce, Asst. Dist. Atty., for appellee.
Victor Timothy Dearmore appeals his conviction for burglary on Count II of the indictment; he was found not guilty of burglary on Count I.
Count II pertinently avers appellant did on August 1, 1987, "unlawfully enter, without authority, the building of another, to-wit: Gene Ragan, doing business as Ragan Insurance Agency, the same being a place where valuable goods were contained, with intent then and there to commit a theft."
Witnesses testified that some unknown person had forcibly entered the Ragan Insurance Agency and had stolen a privately- owned television set therefrom. An alleged accomplice as to Count I testified that after the commission of that subsequent burglary, appellant importuned him to burglarize the Ragan Insurance Agency; and, in the course of such conversation, appellant stated he had gone in there before and had taken money. Appellant did not tell the accomplice that he had previously taken anything from the agency other than money. In response to the question "[d]id [appellant] ever discuss anything like this with you before?" the accomplice testified, "[b]reaking in Ragan's Insurance."
Appellant subsequently consented to a search of his premises 75 days after the burglary of the insurance agency, and the stolen television was found in plain view in his home. Appellant was living less than 50 feet from the insurance agency at the time of its burglary. The Chief of Police also testified, without timely objection, that the insurance agency had been broken into earlier and cash taken; however, no cash was found during the search of appellant's premises. Held:
1. Contrary to the assertions of appellant, this is not a case where the sole evidence of guilt rests upon the inference that may be drawn from the recent possession of stolen goods. Compare Bankston v. State, 251 Ga. 730, 309 S.E.2d 369 with Chaney v. State, 169 Ga.App. 616(1), 314 S.E.2d 457. For example, the alleged accomplice in this case gave testimony concerning a pretrial statement appellant made wherein the latter admitted he had entered the insurance agency previously and had taken money therefrom. This testimony was admissible as an incriminating admission by appellant (see generally Norrell v. State, 116 Ga.App. 479, 486(2), 157 S.E.2d 784) and the fact appellant mentioned only that he had taken money from the agency and made no mention of having taken a television set merely goes to the weight and not the admissibility of the admission.
On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys the presumption of innocence; moreover on appeal, this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga.App. 432, 433(1), 390 S.E.2d 652. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant's guilt. Smith v. State, 257 Ga. 381, 382, 359 S.E.2d 662. Viewing the evidence of this case in a light most favorable to the verdict, we conclude that the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant's guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the burglary offense of which he was convicted. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Further, our review does not reveal the existence of any reversible errors of law. See, e.g., Divisions 2, 3 and 4, below. Appellant's enumerations of error 1, 2, and 3 are without merit.
2. Appellant asserts that the trial court's charge to the jury on the element of intent was improper and violated appellant's rights under the due process clause and Fourteenth Amendment.
Following the charge to the jury, appellant's counsel took a specific exception only to the charge concerning recent possession of stolen property. No request for additional instructions was tendered by appellant, nor did appellant take an exception to the court's charge that: The court previously had instructed the jury that, "[t]here is no burden of proof upon the defendant and the burden never shifts to the defendant to prove his innocence."
When asked by the trial court if he had any exceptions to the charge, an appellant either must state his objections or reserve his right to object on motion for new trial or on appeal; he cannot do both. Pruitt v. State, 258 Ga. 583, 590(14), 373 S.E.2d 192. Appellant neither reserved his right to object, within the meaning of Pruitt, supra, nor did he take any specific exception to this charge when the trial court inquired whether he had any objections thereto. As appellant elected not to reserve his objections to the charges, any asserted errors as to charges were waived which were not raised timely when the trial court asked for objections. See Wright v. State, 182 Ga.App. 570(1), 356 S.E.2d 531.
Further, the charge relating to the presumption of sanity did not impermissibly shift the burden of proof to appellant. Parker v. State, 256 Ga. 363(1), 349 S.E.2d 379; Flynn v. State, 255 Ga. 415(2)(b), 339 S.E.2d 259. Taken as a whole, the charge as rendered was not unconstitutionally burden-shifting and did not violate the due process clause. Freeman v. State, 183 Ga.App. 264(1), 358 S.E.2d 623; see Parker, supra; see also Dill v. State, 254 Ga. 17(1), 325 S.E.2d 765. Moreover, viewing the charges as a whole (see generally, Byrd v. Hopper, 234 Ga. 248, 251, 215 S.E.2d 251), we are satisfied that a reasonable juror could not have interpreted the instruction as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption.
The charge in this case is distinguishable from that found erroneous in Williams v. Kemp, 255 Ga. 380, 388, 338 S.E.2d 669 (), citing and discussing Francis v. Franklin, 471 U.S. 307, 105 S.Ct. 1965, 85 L.Ed.2d 344, Connecticut v. Johnson, 460 U.S. 73, 103 S.Ct. 969, 74 L.Ed.2d 823, and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39. Appellant's other assertions of error concerning this charge are without merit.
3. Appellant asserts that the rule permitting the inference that the defendant is guilty of burglary because he has been found to have stolen goods in his possession violates his rights against self-incrimination secured to him by the Fifth and Fourteenth Amendments to the United States Constitution, and by Art. 1, Sec. 1, Par. 16 of the Georgia Constitution. Compare Barnes v. United States, 412 U.S. 837, 846, 93 S.Ct. 2357, 37 L.Ed.2d 380.
Following the charge to the jury, the trial court inquired whether the parties had any objections thereto. Appellant did not reserve his right to object to the charges, but proceeded to make the following specific objection to the recent possession of stolen goods charge: "[F]or the record, I will except to that, because ... it might mislead [the jury] into thinking that the mere possession is, as a matter of law, enough to support an inference of breaking in." (Emphasis supplied.)
As appellant elected not to reserve his objections to the charges, any asserted errors as to charges which were not raised specifically when the trial court asked if there were any objections to the charges are waived. Pruitt, supra; Wright, supra; see Division 2, above. Accordingly, the error asserted by appellant in his fifth enumeration of error, as to this charge, has been waived.
4. Appellant asserts that the trial court's instructions to the jury with regard to the inference of guilt...
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