Elrod v. State

• Decision Date: 20 April 1990
• Docket Number: No. A90A0351,A90A0351
• Citation: 195 Ga.App. 571,394 S.E.2d 548
• Parties: ELROD v. The STATE.
• Court: Georgia Court of Appeals

Page 548

394 S.E.2d 548

195 Ga.App. 571

ELROD v. The STATE.

No. A90A0351.

Court of Appeals of Georgia.

April 20, 1990.

Rehearing Denied May 11, 1990.

Certiorari Denied June 20, 1990.

Nancy A. Bradford, Atlanta, Louis C. Thacker, Griffin, for appellant.

John T. Newton, Jr., Sol., Griffin E. Howell III, Asst. Sol., for appellee.

BEASLEY, Judge.

Following denial of her motion for new trial and as amended, Elrod appeals her conviction and sentence for misdemeanor theft by shoplifting, OCGA § 16-8-14(a)(1), (b)(1).

1. In her first three enumerations of error, appellant argues the general grounds but does not specify how the evidence is deficient. The evidence construed in favor of the verdict, Thomas v. State, 175 Ga.App. 873, 874(1), 334 S.E.2d 903 (1985), shows that while undetected, a store security guard observed Elrod and her sixteen-year-old friend, Whitlock, pushing a shopping cart through the store. Whitlock took certain cosmetic items from the cart, looked about, and then stuffed the items in the purse she was carrying. Shortly thereafter, Elrod removed some lingerie from the same cart, went to the same spot as Whitlock had, and stuffed the lingerie into her pocketbook. The two women went through the checkout and paid for some other items but did not pay for the items in their purses. The purses were emptied in the security office and the unpaid items found. The evidence was sufficient to enable any rational trier of fact to find Elrod guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. In enumerations of error four, five, six, and eleven, appellant cites adverse rulings regarding admission of evidence of statements by the deceased Whitlock admitting Whitlock's sole guilt for the shoplifting.

The Court ought not consider the enumerations because appellant does not comply with Court of Appeals Rule 15(c)(3) by pointing out where in the record or transcript the alleged erroneous evidentiary rulings occurred. "[An appellate] court can not read every line of the record and transcript to hunt for error." Benefield v. Benefield, 224 Ga. 208, 209(5), 160 S.E.2d 895 (1968).

Secondly, the record reveals defense counsel's ambivalent acquiescence in the court's now objected-to rulings. The objections were not properly preserved and she cannot now be heard to complain of them. See Sanders v. State, 181 Ga.App. 117, 120(2), 351 S.E.2d 666 (1986), citing Upshaw v. Cooper, 127 Ga.App. 690, 692(1), 194 S.E.2d 618 (1972).

3. In enumeration seven, appellant contends the "court erred in overruling [her] objection to repeatedly asking a witness how many bags were present."

Again, appellant makes no effort to identify the testimony by page reference to the transcript. Nor does she identify which witness' testimony is at issue. Moreover, she presents no legal argument other than bare contentions and no citation of authority. The enumeration is abandoned. Court of Appeals Rule 15(c); Ramsey v. State, 183 Ga.App. 48, 51(4), 357 S.E.2d 869 (1987).

4. Enumeration eight cites error in preventing her from cross-examining the prosecuting witness about his memory of his other shoplifting arrests for the same month. She contends the security officer's ability to perceive and recall such specific details was crucial to his credibility and to the defense theory of the case.

Again, the alleged occurrence is not identified in the transcript, but the State has pointed out the subject testimony. Defense counsel asked the witness how many shoplifting arrests he had made during the month of Elrod's arrest and the witness responded that there had been twelve. Defense counsel then asked the witness to name the twelve. The State objected on the basis of relevancy. Defense counsel argued that the witness' ability to recall was critical, ostensibly because of the defense position that the security guard/witness had confused Elrod's identity with that of Whitlock and that Elrod had not been carrying any purse. The court permitted the question and the witness was asked to name the adult shoplifters, which he did. Defense counsel then asked what kind of pocketbook one of the named women had carried. The State again objected. The court told defense counsel it thought the defense had gotten its point across. Defense counsel agreed, reiterated what had been attempted, and ended the recross examination.

"Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded." OCGA § 24-2-1. The admission of evidence is a matter which rests within the discretion of the trial court. Lewis v. State, 158 Ga.App. 586, 587(1), 281 S.E.2d 331 (1981); Baker v. State, 246 Ga. 317, 319(3), 271 S.E.2d 360 (1980). "The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.... The trial court has a wide range of discretion in the control of cross-examination. [Cit.] That discretion will not be limited in the absence of obvious abuse. [Cits.]" Johnson v. State, 158 Ga.App. 333, 334, 280 S.E.2d 379 (1981).

Even if the evidence were relevant to show the witness' recall ability, as appella...