Hickey v. State, A91A1526

• Decision Date: 31 January 1992
• Docket Number: No. A91A1526,A91A1526
• Parties: HICKEY v. The STATE.
• Court: Georgia Court of Appeals

Page 60

415 S.E.2d 60

202 Ga.App. 636

HICKEY v. The STATE.

No. A91A1526.

Court of Appeals of Georgia.

Jan. 31, 1992.

Bond & Zimmerman, Diane M. Zimmerman, Warner Robins, for appellant.

Edward D. Lukemire, Dist. Atty., for appellee.

BEASLEY, Judge.

Appellant, Tyrone Curtis Hickey, was convicted of burglary, OCGA § 16-7-1, and enumerates as error the admission of evidence of an independent crime.

Appellant was convicted of burglarizing Perry High School on September 2, 1987. He gained entrance by removing a windowpane in the principal's office. A latent palm print on it matched appellant's palm print. A small amount of money was stolen, and several tickets to a football game were taken from the bookkeeper's desk. The stolen tickets were identified, and individuals presenting them at the football game testified they bought them from appellant, who was not a student at the school.

Under USCR 31.3, the State filed notice of its intention to present evidence of four transactions: a burglary at Perry Elementary School on November 11, 1987; burglaries at Perry Middle School on September 24, 1987, and May 11, 1987; a burglary at the Houston County Vocational School on June 16, 1983. The court allowed only evidence of the elementary school burglary.

Witnesses testified that entrance to the elementary school was gained through breaking a classroom windowpane and unlocking the window. A VCR machine and tape were taken from the school library. Legible fingerprints were taken from the box which held the videotape, but these prints were not appellant's, and his fingerprints were not found at the scene. A personal check of a school employee payable to "SB & T" was taken from the secretary's desk, and three checks from the school's check ledger payable to a plumbing contractor were also taken. Appellant was arrested after attempting to cash the school employee's check, and he was charged with forgery. One of the school's checks to the plumbing contractor was found in his possession. Another check to the plumbing contractor was cashed at a food store in Perry, and appellant was identified as the person cashing that check. The two schools were approximately one-half mile from appellant's residence.

Appellant argues that the evidence was insufficient to establish that he was the perpetrator of the other crime and that there were insufficient similarities between it and the offense charged, so that it could not be said that proof of the former tended to prove the latter. The preconditions undoubtedly must be met. State v. Johnson, 246 Ga. 654, 655(1), 272 S.E.2d 321 (1980).

Conceding that the State's evidence showed that he was in recent possession of the property stolen from the elementary school, appellant maintains that the State failed to present evidence that he was the burglar. To the contrary, recent possession of stolen goods may raise an inference that the possessor is the one who stole the goods. Thomas v. State, 237 Ga. 690, 692(II), 229 S.E.2d 458 (1976); see Myles v. State, 186 Ga.App. 817, 818(2), 368 S.E.2d 574 (1988). "[T]he standard of proof of reasonable doubt is not applicable to the proof that the defendant was the perpetrator of the independent crime. [Cit.]" Carter v. State, 192 Ga.App. 726, 729(8), 386 S.E.2d 389 (1989). There was sufficient circumstantial evidence that appellant perpetrated the other crime....