Evans v. State

• Decision Date: 06 January 1995
• Docket Number: Nos. A94A2563,A94A2595,s. A94A2563
• Citation: 453 S.E.2d 100,216 Ga.App. 21
• Parties: EVANS v. The STATE. TINCH v. The STATE.
• Court: Georgia Court of Appeals

Page 100

453 S.E.2d 100

216 Ga.App. 21

EVANS v. The STATE.

TINCH v. The STATE.

Nos. A94A2563, A94A2595.

Court of Appeals of Georgia.

Jan. 6, 1995.

Bert W. Cohen, for Evans.

Joan P. Davis, for Tinch.

Thomas J. Charron, Dist. Atty., Debra H. Bernes, Amy H. McHesney, W. Thomas Weathers III, Asst. Dist. Attys., for State.

JOHNSON, Judge.

Derek Evans and Christopher Tinch appeal from their convictions, rendered by a judge sitting without a jury, of criminal attempt to enter an automobile.

1. Evans and Tinch claim there was insufficient evidence that they took a substantial step toward entering an automobile. "A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime." OCGA § 16-4-1. In determining whether there was sufficient proof of a substantial step, we must review the evidence in the light most favorable to the verdict. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Crumbley v. State, 207 Ga.App. 33, 34, 427 S.E.2d 27 (1993). Viewed in this light, the evidence shows Evans, Tinch and Jermaine Corbitt discussed stealing stereo equipment from automobiles; they were in possession of screwdrivers, pliers and various car keys; Tinch drove the trio in his car to a mall parking lot to find a car to break into; they slowly drove through the parking lots of the mall and two other nearby shopping centers for approximately 45 minutes, but left without entering an automobile because they were being followed by a pickup truck, which they later learned was occupied by undercover police officers.

Contrary to the claim of Evans and Tinch, this evidence was sufficient to support the court's finding that they took a substantial step toward entering an automobile with the intent to commit a theft. See OCGA § 16-8-18. "In order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating. Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it. To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it cannot accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case. The substantial step language of OCGA § 16-4-1 shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial. In addition to assuring firmness of criminal purpose, the requirement of a substantial step will remove very remote preparatory acts from the ambit of attempt liability and the relatively stringent sanctions imposed for attempts." (Citations and punctuation omitted.) Smith v. State, 189 Ga.App. 27, 29-30(1), 375 S.E.2d 69 (1988).

Evans' and Tinch's discussion regarding the theft of a car stereo and their possession of tools to aid in the commission of such a theft, without more, would not have amounted to an attempt to enter an automobile, but merely would have been preparatory acts not proximately leading to the consummation of the crime of entering an automobile. Evans and Tinch, however, went beyond these remote acts of preparation when they drove to the shopping center parking lots in search of a specific car to enter. Taken as a whole, the acts of Evans and Tinch were done in pursuit of their intent to enter an automobile for the purpose of stealing stereo equipment and those acts directly tended to the commission of that crime. See Adams v. State, 178 Ga.App. 261, 263-264(2)(b), 342 S.E.2d 747 (1986); compare R.L.T. v. State, 159 Ga.App. 828, 285 S.E.2d 259 (1981). The trial court therefore did not err in finding Evans and Tinch guilty beyond a reasonable doubt of criminal attempt to enter an automobile.

2. Evans and Tinch argue the court erred in denying their motion to suppress all evidence seized by the police after the stop of Tinch's car because the police did not have reasonable suspicion to stop the car or probable cause to arrest them. At the outset, we note the police officers validly stopped the car based on their observation that Tinch was operating it with a defective headlight. See Barnett v. State, 204 Ga.App. 491, 492(1), 420 S.E.2d 43 (1992). Moreover, "an officer may conduct a brief investigative stop of a vehicle, [but] such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination." (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga.App. 545, 546, 428 S.E.2d 440 (1993).

In the instant case, the officers suspected that the occupants of Tinch's vehicle were loitering or prowling. "A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." OCGA § 16-11-36. The officers' suspicions that Tinch and his passengers were in the parking lots in a manner not usual for law-abiding citizens and under circumstances causing concern for the safety of motor vehicles in the lots were not unparticularized hunches, but were based on specific, articulable facts. The officers testified Tinch's car slowly circled through the shopping center...