Dunbar v. State
| Decision Date | 11 August 1997 |
| Docket Number | No. A97A1624,A97A1624 |
| Citation | 491 S.E.2d 166,228 Ga.App. 104 |
| Parties | , 97 FCDR 3130 DUNBAR v. The STATE. |
| Court | Georgia Court of Appeals |
Hemmann & Hemmann, Paul E. Hemmann, for appellant.
Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.
The appellant, Christopher Dunbar, was convicted by a jury in Butts County Superior Court on November 21, 1996, on each of the four counts of Indictment No. 96-R-147: Count 1, theft by receiving (motor vehicle); Count 2, aggravated assault on a police officer; Count 3, fleeing and attempting to elude a police officer; and Count 4, reckless driving. He appeals his conviction, and we affirm.
The record demonstrates that the verdict arose from the following set of facts: On April 9, 1996, Deputy Mark Whitwell was on traffic enforcement duty in a marked police car on Interstate 75. At about 7:50 p.m., he observed the appellant's car, which was a 1989 Oldsmobile Regency, traveling at an excessive rate of speed, "out-distancing all the other traffic on the road." Although Deputy Whitwell did not actually clock appellant's speed, he estimated appellant was driving at least 25-30 mph above the speed limit. Based on his observations, Deputy Whitwell decided to stop appellant's car to at least give appellant a warning and to tell him to slow down.
Deputy Whitwell pulled appellant's car over, exited his patrol car, walked up to the driver's window, and asked appellant for his driver's license and proof of insurance, which appellant did not have. Appellant's car engine was still running during the deputy's conversation with appellant. Deputy Whitwell noticed that the door lock on appellant's car was missing or "punched out" and that there was damage to the steering column. Based on the type of damage to the car, Deputy Whitwell suspected that the car was stolen, and he requested appellant to wait while he went back to his patrol car. Deputy Whitwell went to the rear of appellant's car to recheck the tag number, which he noted was XRF 687. While the deputy was standing behind appellant's car, the car was driven backward towards the deputy; the deputy jumped out of the car's path, and the car drove forward and left. Deputy Whitwell would have been hit by the backward movement of the car if he had not moved out of the way.
Deputy Whitwell pursued appellant two and one-half to three miles on the interstate until appellant exited onto Highway 36. The pursuit continued down Highway 36 into the City of Jackson where appellant's car finally overheated, and Deputy Whitwell was able to apprehend the appellant. During Deputy Whitwell's pursuit of appellant, appellant traveled at speeds of up to 110 mph, forced several cars traveling in the opposite direction off the road by driving his car into the opposite lane of traffic, ran through several stop signs, ran through a partial roadblock, struck another vehicle, ran through two other patrol cars, and attempted to side swipe Deputy Whitwell's patrol car when the deputy pulled up beside him.
Appellant testified at trial and denied that he was traveling at 25-30 mph over the speed limit. Appellant testified that he was traveling at the same speed that other vehicles around him were traveling, which was about 60 mph, and that he was traveling beside a tractor-trailer truck. Appellant testified that he saw the patrol car along the side of the road but kept driving beside the truck for about another mile or mile and a half before the patrol car pulled up behind him and pulled him over.
Appellant further testified that while stopped he had a brief conversation with Deputy Whitwell, during which Deputy Whitwell accused him of driving a stolen car. Appellant denied Deputy Whitwell's statement that the deputy walked to the back of appellant's car, and appellant denied trying to back his car into the deputy. Appellant further testified that Deputy Whitwell was standing next to the driver's door and ordered him to turn off the engine; that when he failed to do so, Deputy Whitwell reached for his gun, and appellant then drove off at a high speed; and that the reason he drove off was that he had a parole violation in Savannah, Georgia, and knew he would be arrested. Appellant admitted that the car he was driving had a broken lock and steering column, that he did not have a key to the car, and that there was "a little gadget on the steering column that you had to pull to crank the car up," but denied knowing that the car was stolen. Appellant denied driving at speeds over 100 mph, driving into the lane of traffic moving in the opposite direction, running stop signs, and trying to side swipe the deputy's patrol car during the chase.
At the time of appellant's arrest, he gave a false name of Christopher Dunbar to the arresting officer. Appellant was indicted under the name of Christopher Dunbar, and it was only after indictment that the State became aware that appellant's true name was, in fact, George Gay.
1. Appellant, in his first two enumerations of error, contends that there was insufficient evidence to convict him under Count 1, theft by receiving stolen property. Appellant contends that the State failed to prove the essential element of ownership of the stolen vehicle and failed to identify the car found in appellant's possession as the same car that was alleged in the indictment. Appellant further alleges that the State failed to meet its burden of proof regarding the essential element of knowledge that the vehicle was stolen.
(a) Appellant's argument that there was no evidence to connect the vehicle stolen from Norma Smith and the vehicle being driven by appellant at the time of his arrest or to identify the vehicle found in appellant's possession as being the same vehicle that the State alleged was stolen, i.e., Norma Smith's car, is without merit. Ownership of the stolen vehicle and that the vehicle found in appellant's possession was the same vehicle that was alleged in the indictment was proven by the testimony of the victim, Norma Smith, coupled with the testimony of Deputy Whitwell. See Rautenberg v. State, 178 Ga.App. 165, 168, 342 S.E.2d 355 (1986).
Norma Smith testified that she owned a 1989 Oldsmobile Regency automobile; that such vehicle was stolen while she was eating dinner at the Ramada Inn; that she notified the police immediately; that she had never given the appellant permission to use her car; and that during the month of April she had not given anyone permission to use her car.
Deputy Whitwell testified that he was patrolling Interstate 75 on April 9, 1996; that he stopped appellant for excessive speed; that appellant was driving a 1989 Oldsmobile Regency with a tag number of XRF 687; that he observed damage to the door of the vehicle and the steering column; that while he was waiting on a response on the vehicle identification, appellant fled the scene; that after a high speed chase he finally apprehended appellant; and that he received confirmation that the vehicle had been reported stolen.
" Burkett v. State, 133 Ga.App. 728, 731, 212 S.E.2d 870 (1975). The year, make, model, and tag number of the car driven by the appellant at the time of his arrest were identified by the witnesses at trial and matched the description of the vehicle set out in the indictment as the vehicle stolen from Norma Smith.
(b) Scienter is an essential element of the crime of theft by receiving stolen property. See OCGA § 16-8-7; Turntime v. State, 206 Ga.App. 226, 424 S.E.2d 877 (1992); Abner v. State, 196 Ga.App. 752, 397 S.E.2d 36 (1990). Scienter (Citations and punctuation omitted.) Gunn v. State, 163 Ga.App. 906, 907, 296 S.E.2d 221 (1982). In the case sub judice, the evidence adduced by the State set forth circumstances that "would excite suspicion in the mind of an ordinary prudent person." Turntime, supra at 227, 424 S.E.2d 877. This evidence includes the fact that both the door lock and the steering column were damaged; that appellant did not have a key to the vehicle and had to start the car by "a little gadget on the steering column that you had to pull to crank the car up"; that appellant fled the scene; and that appellant gave a false name when he was arrested. Recent possession of stolen property, in conjunction with other evidence, allows the jury to infer knowledge of the theft of the property. Pate v. State, 158 Ga.App. 395(1), 280 S.E.2d 414 (1981); Ridley v. State, 135 Ga.App. 333, 334, 217 S.E.2d 459 (1975) (Evans, J., concurring specially); Higginbotham v. State, 124 Ga.App. 489(3), 184 S.E.2d 231 (1971). Thus, the jury was authorized to infer that appellant had the requisite knowledge that the car was stolen.
The evidence, viewed in a light most favorable to the verdict, was sufficient for a rational trier of fact to have found appellant guilty of the offense of theft by receiving stolen property. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
2. Appellant also contends that evidence of an alleged similar transaction should not have been admitted. We disagree and find that the State carried its burden of showing a sufficient degree of similarity for admission of this particular similar transaction evidence.
Before evidence of an independent offense or act may be admitted into evidence, the State must make three...
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