Harvey v. State

• Decision Date: 27 February 2018
• Docket Number: A17A1789
• Citation: 811 S.E.2d 479
• Parties: HARVEY v. The STATE.
• Court: Georgia Court of Appeals

344 Ga.App. 761

811 S.E.2d 479

HARVEY

v.The STATE.

A17A1789

Court of Appeals of Georgia.

February 27, 2018

Natalie Katherine Glaser, Micah Jay Gates, for Appellant.

Herbert McIntosh Poston Jr., Jennifer Dawn Baxter, for Appellee.

Reese, Judge.

A jury found Reginald Harvey guilty of burglary in the first degree and felony theft by taking.¹ He appeals from the trial court’s denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions, the court erred in admitting certain evidence, and the court erred in sentencing him. For the reasons set forth, infra, we affirm.

Viewed in the light most favorable to the jury’s verdict,² the record shows the following facts. On October 15, 2014, Harold Cochran drove to his sister-in-law’s home in Whitfield County. As Cochran arrived at about 2:40 p.m., he saw a man he did not recognize walking from the garage area of the home. The man was "[v]ery well-dressed," wearing dark pants, a purple dress shirt, and a lanyard. Cochran started to approach the man, but the man avoided eye contact and quickly got into an older model Cadillac that was parked in the house’s driveway. The man backed out of the driveway and started driving away at a high rate of speed, so Cochran followed him and called 911. However, Cochran eventually lost sight of the Cadillac.

Cochran returned to his sister-in-law’s home and talked to a police officer who had responded to the 911 call. Upon entering the house, the officer observed that there was no sign of forced entry and that all of the doors and windows were shut and locked with the exception of one window, which was open several inches. The homeowner arrived home, and, after walking through the house, she told the officer that the only things that appeared to be missing were her jewelry box and several pieces of jewelry. The homeowner also noticed that the ceiling fan in her bedroom had been turned off, even though she always kept it running, even when she was not at home.

Within a few days, the homeowner gave a police detective a list of the missing jewelry with each piece’s approximate value. According to the list, the burglar had stolen, among other things, several diamond rings; a "bridal set" of rings; a pair of tungsten wedding bands; a gold ring engraved with the initials of the homeowner and her late husband; a "pinky" ring engraved with the initials of the homeowner’s maiden name; diamond earrings; several necklaces (some with diamonds and pearls); and several watches. The homeowner testified that the total value of the stolen jewelry was "well over $5,000."

The detective investigating the burglary checked a website, Leadsonline.com, that showed recent pawn shop transactions in the area. According to the website, a man identified as "Reginald Harvey" had sold several pieces of jewelry that appeared to match the homeowner’s list to at least two local pawn shops on October 16, 2014, the day after the burglary, as well as on October 17 and 22, 2014. The detective contacted the pawn shops, and the shops e-mailed pictures of the jewelry to the detective. He then forwarded the pictures to the homeowner, who identified the items as some of the pieces that had been stolen from her home. The jewelry also matched the items described on the list that the homeowner had provided. The detective then retrieved the jewelry and returned it to the homeowner, although not all of the jewelry that had been stolen was recovered.

The detective also obtained a search warrant for the Appellant’s home. During the search, the detective found a purple dress shirt, a small envelope with "2004 Cadillac DeVille" and "Reginald Harvey" written on it, several jewelry boxes of various sizes, and numerous pieces of jewelry. The detective photographed the jewelry boxes and jewelry and sent the pictures to the homeowner, but none of the items belonged to her. The detective testified that he thought it was odd that the Appellant had so many pieces of women’s jewelry and several jewelry boxes because he found no other evidence that a woman lived in the Appellant’s house.

In addition, the detective obtained surveillance camera video recordings from a convenience store that was less than one quarter mile from the house at issue. The recordings showed that, at 2:26 p.m. on the day of the burglary, a man who was wearing a dark-colored dress shirt, a tie, and a lanyard with an identification badge entered the store. The detective also obtained a video recording from a security camera located at a public park near the house. The recording was from the day of the burglary, October 15, 2014, and showed a person walking around the outside of the house at issue, disappearing briefly, then reappearing, and repeating this pattern a few times between 2:30 and 2:40 p.m.

The Appellant was arrested and charged with burglary in the first degree and felony theft by taking. At trial, in addition to presenting the above evidence, the State showed that the Appellant had entered guilty pleas to multiple counts of residential burglary and theft by receiving jewelry in 1990 and 1996.³ Ultimately, the jury convicted him on both counts in this case: burglary in the first degree and felony theft by taking. The trial court denied his motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence.

This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia ,⁴ and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.⁵

The standard of Jackson v. Virginia , supra, is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged.⁶ Further, we review the trial court’s admission of evidence of other criminal acts for a clear abuse of discretion.⁷ With these guiding principles in mind, we turn now to the Appellant’s specific claims of error.

1. The Appellant contends that there was no direct evidence, such as fingerprints inside the victim’s home, to prove that the Appellant committed the burglary⁸ and that the circumstantial evidence presented by the State was insufficient to support his convictions.

Under OCGA § 24-14-6, "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."

However, the circumstantial evidence need not exclude every conceivable inference or hypothesis—only those that are reasonable. Moreover, whether a hypothesis is reasonable and whether every other hypothesis except the guilt of the accused has been excluded are generally questions for the jury to decide. Because jurors are able to hear and observe the witnesses, and thus are better able to judge the reasonableness of a hypothesis raised by the evidence, this Court

will not disturb their findings unless it is unsupportable as a matter of law.⁹

Here, the circumstantial evidence showed that, on the afternoon of the burglary, a man entered a convenience store near the house that was burglarized. Minutes later, the same man was seen outside the house’s garage, and he sped away in a Cadillac when Cochran arrived at the house. Inside the house, a ceiling fan had been turned off, and a jewelry box and jewelry were missing, which indicated that someone had been inside the house after the homeowner had left that day. Over the next few days, the Appellant sold some of the stolen jewelry to at least two local pawn shops. Then, while searching the Appellant’s house, police officers found a purple dress shirt similar to the one the man at the house was wearing and an envelope indicating that the Appellant had a 2004 Cadillac DeVille. Officers also found several jewelry boxes and numerous pieces of women’s jewelry in the Appellant’s home, even though it did not appear that a woman lived there. Finally, the State showed that the Appellant had previously pled guilty to burglarizing several residences.

In addition to this evidence, the State presented the testimony of the managers of two of the pawn shops at issue to prove that the Appellant was, in fact, the man who sold the homeowner’s jewelry to the shops within days of the burglary. The store manager from one of the pawn shops, EZPAWN in Chattanooga, Tennessee, testified about her shop’s procedures when someone brought in items to sell. She testified that customers wanting to either sell or pawn an item had to present a valid identification card ("I.D."). A shop employee then appraised the item, and the customer signed the purchase or pawn ticket. The manager admitted that the shop did not pay the fair market value for jewelry it purchased from customers. Every night, the shop uploaded information about all of its transactions onto the Leadsonline.com website and also sent it to the police department. The manager identified two purchase tickets for jewelry sold to the shop by a person identified as "Reginald Charles Harvey" on October 16 and 22, 2014. The purchase tickets listed the items "Reginald Charles Harvey" sold to the store as, inter alia, a pair of white gold, double-stud diamond earrings; a man’s gold diamond ring; a woman’s 14-carat gold cluster diamond ring; and a diamond pendant. The tickets had the Appellant’s driver’s license information on them, and the manager testified that there was no way someone other than the man pictured on the license could have sold the items to the shop using the Appellant’s driver’s license. In fact, the manager testified that she recognized the Appellant beca...