Ferguson v. the State.

• Decision Date: 01 December 2010
• Docket Number: No. A10A1361.,A10A1361.
• Citation: 704 S.E.2d 470,307 Ga.App. 232
• Parties: FERGUSONv.The STATE.
• Court: Georgia Court of Appeals

307 Ga.App. 232

704 S.E.2d 470

10 FCDR 4036

FERGUSON

v.The STATE.

No. A10A1361.

Court of Appeals of Georgia.

Dec. 1, 2010.

Michael A. Corbin, Dalton, for appellant.Kermit N. McManus, District Attorney, John S. Helton, Assistant District Attorney, for appellee.BLACKWELL, Judge.

Derrick Ferguson was tried by a jury and was convicted of several crimes, including two counts of theft by taking a motor vehicle in violation of OCGA § 16–8–2. Ferguson appeals from his conviction and the denial of his motion for new trial, contending that (1) the evidence adduced at trial is insufficient to sustain his conviction on one count of theft by taking a motor vehicle and (2) his trial counsel failed to object to the admission of certain “bad character” evidence and, therefore, was ineffective. We disagree and affirm.

Viewed in the light most favorable to the verdict,¹ the record shows that, on November 24, 2006, Ferguson was living at a residential facility in Dalton operated by Providence Ministries. Early that afternoon, a woman parked her Toyota Camry in the front of the thrift store that Providence Ministries operated at the same location and went into the store to shop, leaving her car unlocked and the keys in the car. When she later exited the store, she discovered that her car had been stolen.

The premises of Providence Ministries were monitored by a video surveillance system, and police officers reviewed video recordings made at or around the time of the theft as a part of their investigation. These recordings, which were admitted at trial, show a man—wearing khaki pants, a light shirt, and a dark jacket—walking by the parked Camry several times and, on at least one occasion, looking into it. The same recordings show a man—wearing khaki pants, a light shirt, and a dark object wrapped about his head—enter the vehicle a few minutes later and drive away. Late on the afternoon of November 24, a police officer spoke with Ferguson, who was wearing khaki pants, a light shirt, and a blue jacket. Ferguson admitted to the officer that he was the man depicted in the recordings walking near the Camry,² but he denied stealing the car. Ferguson was not arrested at that time.

Later that night, police officers responded to a report of suspicious activity at a used-car lot in Dalton. As one officer approached and entered the lot to investigate, he observed someone enter and start a Honda Accord parked on the lot. Although the officer twice identified himself as a police officer and commanded the driver of the car to stop, the driver drove off the lot, striking two vehicles and a fence in the process.

Another responding officer joined the pursuit of the Accord and followed it to a parking lot, where the officer saw a man exit the car with a bag and run toward a nearby fence. Shortly thereafter, the officer discovered Ferguson, wearing khaki pants and a dark jacket and lying on the ground in a nearby, fenced-in area, which was only a few blocks from Providence Ministries. Officers also located a bag, which contained items that belonged to Ferguson, near the stolen Accord. Ferguson was arrested and charged with the theft of both vehicles and related crimes.

A jury convicted Ferguson of the theft of both cars, as well as fleeing to elude a police officer in violation of OCGA § 40–6–395(a), second-degree criminal damage to property in violation of OCGA § 16–7–23(a)(1), obstruction of a law enforcement officer in violation of OCGA § 16–10–24(a), and leaving the scene of an accident in violation of OCGA § 40–6–270(c)(1). Ferguson then filed a motion for a new trial, which was denied. This appeal followed.

1. Ferguson claims that the evidence adduced at trial is insufficient to prove beyond a reasonable doubt that he is the person that stole the Camry. We disagree. When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could find, in the evidence adduced at trial, proof of guilt beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict. See Cutrer v. State, 287 Ga. 272, 274, 695 S.E.2d 597 (2010); see also Wilson v. State, 304 Ga.App. 743, 745(1), 698 S.E.2d 6 (2010). As we have said before, “[i]t is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence.” Wilson, supra 304 Ga.App. at 745(1), 698 S.E.2d 6. So, if the record contains some competent evidence to prove each element of the crime of which the defendant was convicted, even though that evidence may be contradicted, we must uphold the conviction. Cooper v. State, 299 Ga.App. 199, 200, 682 S.E.2d 154 (2009). Here, the evidence is sufficient to permit a rational jury to conclude beyond a reasonable doubt that Ferguson stole the Camry.

Although Ferguson argues otherwise, this is not a case in which the evidence merely shows that Ferguson was present at the place from which the Camry was stolen. The theft of the Camry was recorded by video surveillance cameras, and the jury was shown a recording of the theft, which depicts the thief walking across a parking lot with his face concealed, approaching the Camry, entering the Camry, and only seconds later, driving it away. The jury also saw video surveillance recordings taken in the same vicinity a few minutes before the Camry was stolen, which show Ferguson—who admitted to a police officer that he was the person depicted in these recordings—walking about the facility from which the Camry was stolen and walking past the Camry more than once. The jury, therefore, was afforded the opportunity to consider how the thief was dressed, his complexion, his size and build, his gait and posture, and other characteristics of his appearance and compare them with nearly contemporaneous recordings of Ferguson.³

Identity is a question of fact for the jury to decide. Brown v. State, 277 Ga.App. 169, 170(1), 626 S.E.2d 128 (2006). We have said before that “it is not beyond the ken of the average juror to decide as a matter of fact whether the identity of a person in a video is the defendant.” Carter v. State, 266 Ga.App. 691, 693(2), 598 S.E.2d 76 (2004); see also Moses v. State, 252 Ga.App. 23, 24, 555 S.E.2d 246 (2001) (“[T]he jury had access to the videotapes of the transactions, viewed them twice, and could determine the identity of the persons shown therein.”). And in a case in which a robbery of a convenience store was recorded by a surveillance camera, we held that the evidence of identity was sufficient because the jury had the opportunity to examine surveillance camera photographs of the robber and compare them with the defendant as he appeared at trial. See Brown, supra 277 Ga.App. at 171(1), 626 S.E.2d 128. In this case, the jury not only had the opportunity to compare a video recording of the car thief with Ferguson as he appeared at trial, it also had the opportunity to compare the thief with Ferguson as he appeared on the date of the theft and as recorded by the same video surveillance system. By comparing the two, a rational jury could conclude beyond a reasonable doubt that Ferguson was the person who stole the Camry.

Moreover, other aspects of the evidence support the jury's identification of Ferguson as the thief. Given the way in which the thief, as depicted in the video recordings, confidently entered the Camry and almost immediately drove away, the jury properly could infer that the thief knew that the keys were in the car. The video recordings of Ferguson show him look toward the car as he walked past its passenger door only minutes before it was stolen, from which the jury might properly infer that Ferguson had the opportunity to see that the keys were in the car.

The jury also was presented with evidence that Ferguson stole the Accord only hours after the Camry was stolen, and Ferguson does not contend that the evidence is insufficient to prove that he stole the Accord. Both crimes occurred in the same city and on the same date, and both involved the theft of foreign-made, mid-size sedans. The State presented evidence from which the jury could infer that, like the Camry, the keys had been left in the Accord at the time it was stolen, and the keys from both cars were missing when the cars were recovered. Given these similarities, evidence of either theft would be admissible as a similar transaction at the trial of the other to show bent of mind, intent, and course of conduct. See Mattox v. State, 287 Ga.App. 280, 283(1), 651 S.E.2d 192 (2007) (where defendant was charged with entering and attempting to steal a pickup truck and sport-utility vehicle, trial court properly admitted evidence of a similar transaction involving the theft of a pickup truck using similar methods, where the crimes charged and the similar transaction occurred “during the same month [and] in the northern metropolitan Atlanta area”). Accordingly, the evidence that Ferguson stole the Accord supports his conviction for stealing the Camry.

Finally, Ferguson testified at trial. Although he denied that he stole either of the two cars, the jury was entitled to weigh his testimony against the other evidence in the case, assess his credibility, and determine whether his testimony was truthful. And if the jury concluded that his testimony was not truthful, as we must assume it did, the jury was entitled to take his untruthfulness as substantive and affirmative evidence of his guilt. See Wright v. West, 505 U.S. 277, 296(II), 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (“As the trier of fact, the jury was entitled to disbelieve West's uncorroborated and confused testimony.... And if the jury did disbelieve West, it was further entitled to consider whatever it concluded to be perjured testimony as affirmative evidence of guilt ....”); see also United States v. Jiminez, 564 F.3d 1280, 1285(II) (11th Cir.2009) (same).

“A proper inference the jury can make from disbelieved...