Hunsucker v. State, 63161
| Decision Date | 07 January 1982 |
| Docket Number | No. 63161,63161 |
| Citation | 287 S.E.2d 689,160 Ga.App. 846 |
| Parties | HUNSUCKER v. The STATE. |
| Court | Georgia Court of Appeals |
E. Jay McCollum, Demorest, for appellant.
V. D. Stockton, Dist. Atty., Michael H. Crawford, Asst. Dist. Atty., for appellee.
Defendant was indicted in two counts with the offense of burglary. The first count alleges a burglary occurring on October 21, 1980, at a rural dwelling house of one victim near Clarkesville, Georgia. Count 2 concerned a burglary of another victim's dwelling house occurring on October 26, 1980, "located at Winchester Road, Demorest, Georgia." The defendant moved to sever and also for a change of venue due to certain news items concerning the burglaries. We find no ruling of the trial court with reference to these motions either in the record or in the transcript of the evidence and proceedings. At the completion of the state's case counsel for defendant moved for directed verdict as to Count 2 (the burglary allegedly occurring on October 26, 1980), and after hearing argument the trial court granted the motion and directed the verdict as to defendant as to this count. The defense then rested its case without putting up any evidence. The court instructed the jury that a motion had been made for directed verdict as to Count 2, which had been granted. A verdict of guilty was then returned on the remaining count, and the defendant was sentenced to serve a term of 10 years. A motion for new trial was filed and denied, and the defendant appeals. Held:
1. The first enumeration of error complains of the failure to grant the motion to sever the two counts of burglary as being totally unrelated, involving different victims, different locations, at different times. In response to this enumeration of error the state contends that the trial court never considered the motion. Our examination of the record and transcript confirms this. The burden is on the defendant who asserts error to show it affirmatively by the record, and here there appears to have been no ruling requiring our review. See Dowdy v. State, 152 Ga.App. 145-146, 262 S.E.2d 511, and cases cited. We also note here the decision in Bell v. State, 141 Ga.App. 277(1), 233 S.E.2d 253, that generally no harm results to a defendant from the consolidation of charges where "the jury returned a verdict of not guilty on one of the indictments." See also Phillips v. State, 160 Ga.App. 345, 287 S.E.2d 69 (1981). In the Phillips case this court discussed the rulings in Dingler v. State, 233 Ga. 462, 211 S.E.2d 752, and Haisman v. State, 242 Ga. 896, 900(3), 252 S.E.2d 397, that is, that offenses may be joined for trial when they are based (1) on the same conduct, or (2) on a series of acts connected together, or (3) on a series of acts constituting parts of a single scheme or plan. Here the offenses occurred in rural areas a few days apart by breaking the glass and opening a door to enter rural dwellings. However, under the circumstances above, since no ruling was obtained on the motion, we find no reversible error.
2. Examination of the evidence with reference to the remaining count of burglary discloses that the evidence was sufficient to support the verdict of guilty. After a careful review of the entire record and transcript we are of the opinion that the trial court did not err in denying the motion for new trial based on the general grounds as the evidence was sufficient to support the verdict of guilty beyond a reasonable doubt based upon the evidence adduced at the trial. A rational trier of fact could reasonably have found same from this evidence. See Dukes v. State, 151 Ga.App. 312, 319, 259 S.E.2d 706; Moses v. State, 245 Ga. 180, 181(1), 263 S.E.2d 916; Snell v. State, 246 Ga. 648, 272 S.E.2d 348; Caffo v. State, 247 Ga. 751, 754, 279 S.E.2d 678.
3. During the charge the court gave complete instructions on recent possession of stolen goods, that is, if the jury found that the burglary had occurred and that recently after it occurred, the defendant was found in possession of items taken in the burglary, this recent possession unless satisfactorily explained by the evidence is a circumstance from which it may be inferred that the defendant was guilty of the burglary. During the deliberations of the jury it apparently requested the court to send them a book, and the court stated this could not be given to the jury but that the court would be glad to give a further charge, if necessary, on burglary and recent possession. The court did recharge on burglary and recent possession, but we do not have these instructions in the transcript as the reporter had been excused. At the completion of the charge exception was made to the request as to the charge on recent possession, that is, in giving the state's version and refusing to give the defendant's request to charge on recent possession. The jury then returned a verdict of guilty. Defense counsel then requested to...
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