Dixson v. State

• Decision Date: 16 December 2011
• Docket Number: A11A1330.,Nos. A11A1329,s. A11A1329
• Parties: DIXSON v. The STATE.Jackson v. The State.
• Court: Georgia Court of Appeals

11 FCDR 3979

12 FCDR 51

313 Ga.App. 379

721 S.E.2d 555

DIXSON

v.The STATE.Jackson

v.The State.

Nos. A11A1329

A11A1330.

Court of Appeals of Georgia.

Nov. 23, 2011.Reconsideration Denied Dec. 16, 2011.

Robert Kenner, Jr., for appellants.

Lee Darragh, Dist. Atty., Jennifer Dawn Hart, Hugh Michael Hamilton, Asst. Dist. Attys., for appellee.

BARNES, Presiding Judge.

These are companion appeals from the convictions of Margaret J. Dixson and her daughter, Nikeesha Sharay Jackson, for various crimes in connection with a series of shoplifting incidents that occurred at the North Georgia Premium Outlet. In Case No. A11A1329, Dixson was convicted of five counts of misdemeanor theft by receiving and one count of felony fleeing and eluding. She contends on appeal that the evidence was insufficient, and that the trial court erred in refusing to give one of her requested charges. In Case No. A11A1330, Jackson was convicted of one count of felony shoplifting and one count of misdemeanor shoplifting. On appeal she contends that the trial court erred in denying her motion for directed verdict because the evidence was insufficient to support her convictions.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga.App. 522, 523, 607 S.E.2d 165 (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence shows that on January 21, 2009, Dixson, Jackson, and a third woman, Darolynn Patterson, went to the North Georgia Premium Outlet in Dawson County. A deputy with the Dawson County Sheriff's office was shopping in The Children's Place store when he observed Jackson and Patterson enter the store. He became suspicious of the women because “as soon as they walked into the store, they immediately took a left and just started picking up clothes.” The deputy testified that he found the behavior suspicious because most people walk around and “meander” when they shop. When he observed Patterson appear to put items of clothing in her large multicolored purse, he called the 911 center, reported the incident, and gave the operator a description of the two women. The deputy did not observe Jackson take any clothing.

The deputy followed Jackson and Patterson out of the store and saw them get into a white Mitsubishi car. He testified that when the car pulled away “both females were actually in the car, but the doors were not fully closed when the vehicle took off.” Jackson was in the front passenger seat and Patterson was in the rear seat, but the deputy could not see the driver.

A patrol officer responding to the 911 dispatch observed the white Mitsubishi coming out of the south exit of the outlet mall and pursued the car with its blue lights activated. The officer “observed several items, blue and green clothing being thrown out of the passenger side window.” The officer continued the chase, and radioed dispatch to have someone pick up the tossed items. The white vehicle used the center turn lane to pass several vehicles, then maneuvered around several vehicles waiting for a red light to change by traveling “in the gore area near the little triangle that's set up to lay out the lane designations.” The white vehicle then “accelerate[d] even harder” and in his attempt to catch up, the officer testified that he “accelerated absolutely as hard as that Crown Victoria would accelerate.”

The officer finally caught up with the vehicle, and the driver pulled over. The driver, who was identified as Dixson, exited the car, and the officer arrested her for fleeing and attempting to elude a police officer and the illegal traffic maneuvers. Jackson and Patterson were detained, and later arrested. Merchandise from five stores—Bath and Body Works, Claire's, Osh Kosh, The Children's Place and Carter's—was retrieved from the vehicle. Employees from the stores identified and testified as to the value of the merchandise. The Bath and Body Works merchandise was valued at $43; the Osh Kosh merchandise at $36.37; the Claire's merchandise at $29.50; the Carter's merchandise at $468.34; and The Children's Place merchandise at $270.

Patterson testified for the State that she, Dixson, and Jackson had stolen clothing from Carter's and The Children's Place and put the clothes in Dixson's vehicle. She also testified that the women knew that the police car was behind them, that Dixson did not immediately pull over, and that Jackson had tossed clothing out of the window. Before trial, Patterson pled guilty to two counts of theft by shoplifting and one count of possession of tools for the commission of a crime.

Case No. A11A1329

Dixson was convicted of five counts of misdemeanor theft by receiving, and one count of felony fleeing and eluding. On appeal she contends that the trial court erred in denying her directed verdict motion on all counts because the evidence was insufficient to show that she received stolen property from the various stores, or that the property was stolen in Dawson County. She also contends that a fatal variance exists between the allegations and the proof because the State's evidence shows that she was a principal thief rather than a receiver of stolen property. Dixson further contends that the trial court erred in denying her motion in arrest of judgment as to the fleeing and eluding count, and that the trial court erred by not giving one of her jury charges.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury's verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve.

(Citation, punctuation and footnote omitted.) Yarbrough v. State, 241 Ga.App. 777, 780–781(4), 527 S.E.2d 628 (2000).

1. Dixson contends that the only evidence the items were stolen was Patterson's uncorroborated testimony, which was insufficient because Patterson was an accomplice. We do not agree.

Under OCGA § 16–8–7, “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” A person convicted of OCGA § 16–8–7 “shall be punished as for a misdemeanor except: (1) If the property which was the subject of the theft exceeded $500.00 in value.” OCGA § 16–8–12(a)(1).

OCGA § 24–4–8 requires that accomplice testimony be corroborated in felony cases where the only witness is the accomplice[,] only slight evidence from an extraneous source as to a defendant's identity and participation is needed to corroborate an accomplice's testimony. And, such evidence may be entirely circumstantial.

Smith v. State, 257 Ga.App. 595, 597(1), 571 S.E.2d 817 (2002). It is for the finder of fact to determine whether the evidence, though circumstantial, is sufficient to warrant a finding that the accused committed the offense. See Hurston v. State, 202 Ga.App. 311, 313(1), 414 S.E.2d 303 (1991). Guilt may be inferred from possession of recently stolen property in conjunction with other evidence of knowledge. Id. at 312(1), 414 S.E.2d 303. “Guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinary prudent [person].” Id.

Here, in addition to Patterson's testimony, the deputy observed Patterson and Jackson appear to shoplift at The Children's Place, after which they got into Dixson's car. The evidence also shows that Dixson's car was parked in an isolated area far from the store where the women were observed. Further, Dixson did not stop when police were chasing her, but instead continued to drive evasively while Jackson threw items out of the passenger window. Moreover, there were no receipts showing that the items had been purchased.

It is not required that the corroboration of the testimony given by an accomplice shall of itself be sufficient to warrant a verdict of guilty, or that the testimony of the accomplice be corroborated in every particular. The amount of corroborative extraneous evidence necessary to connect the accused with the commission of the offense lies peculiarly within the province of the factfinder.

(Punctuation omitted.) Emory v. State, 301 Ga.App. 771, 774(2), 688 S.E.2d 682 (2009). The evidence corroborating Patterson's testimony was sufficient under Jackson v. Virginia, supra, to authorize the jury's determination that Dixson was guilty beyond a reasonable doubt of the theft by receiving.

2. Dixson also challenges the trial court's denial of her motion in arrest of judgment as to the count of fleeing and attempting to elude police, arguing that it was improperly and incompletely alleged.

OCGA § 40–6–395(a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal...