Maddox v. State

• Decision Date: 15 March 1984
• Docket Number: 67205,Nos. 67203,s. 67203
• Citation: 170 Ga.App. 498,317 S.E.2d 617
• Parties: MADDOX v. The STATE. NORRIS v. The STATE.
• Court: Georgia Court of Appeals

Page 617

317 S.E.2d 617

170 Ga.App. 498

MADDOX v. The STATE.

NORRIS v. The STATE.

Nos. 67203, 67205.

Court of Appeals of Georgia.

March 15, 1984.

Rehearing Denied March 29, 1984.

Derek H. Jones, Atlanta, for appellants.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard E. Hicks, Paul L. Howard, Jr., Asst. Dist. Attys., for appellee.

QUILLIAN, Presiding Judge.

Atlanta police Lieutenant Nash was on routine patrol in the Luckie Street area of downtown Atlanta at about 1:30 p.m. on a Saturday afternoon when he saw two young black males run across the street and go over a fence enclosing the premises of an automobile parts firm which, like most other businesses in the area, was not open on a Saturday afternoon. Nash halted his car and ran to a position from which he could observe the two men. He saw them climbing the opposite fence and running to a waiting van, which immediately started up. Nash then summoned officers patrolling nearby. When the van's driver saw the oncoming patrol car occupied by officers Fox and Fouchia, who were responding to Nash's call, he took evasive action, with the result that the van apparently stalled, and rolled to a stop. Officer Fox chased the two men who leaped out and caught one, later identified as appellant Maddox, but the other, identified by appellants as "Johnny Hill," got away. Nothing further is known of the whereabouts or subsequent activities of that person.

In the meanwhile, officer Fouchia attempted to approach the van from the rear but was forced to run for cover behind the patrol car when the van suddenly began to back rapidly down the sidewalk toward him. The van collided with the patrol car and finally came to rest against a wall, at which point a third black male, whom Fouchia recognized as having been at the wheel during the head-on encounter a few moments previous, leaped out and ran. He was apprehended and subsequently identified as appellant Norris. The van was found to have been "hot-wired." The patrol car sustained slightly more than $1,000 in damages.

Norris was indicted on three counts of aggravated assault, criminal interference with government property, and theft by taking. Maddox was charged with theft by taking only. They were tried jointly. At trial the van's owner testified that at 1:00 p.m., when he had closed his business--located four to five miles from the scene of the apprehension, the locked van was parked in its customary place, with the key inside the locked office. He knew neither of the accused and neither had permission to enter or drive the van. A jury found both appellants guilty. They appeal from this judgment, assigning as error the denial of their motions for directed verdicts of acquittal and the court's refusal to give certain jury instruction, and the giving of two instructions. Held:

1. The trial court did not err in denying appellant's motions for directed verdicts of acquittal. The statutory standard for application by a trial court to decide a motion for a directed verdict of acquittal is "[w]here there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal ... the court may direct the verdict of acquittal ..." OCGA 17-9-1(a). Review of the evidence adduced at trial reveals there was ample evidence sufficient to enable any rational trier of facts to find the existence of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560); Stinson v. State, 244 Ga. 219(4), 259 S.E.2d 471. Thus, it was not error for the trial court to refuse to grant the motions for directed verdicts of acquittal. Lee v. State 247 Ga. 411, 412(6), 276 S.E.2d 590.

2. Also without merit are appellant's third and fourth enumerations. Contrary to appellants' contentions, the jury instructions on recent possession of stolen goods and on the meaning of actual and constructive possession were not such as either to confuse the jury or to deprive appellants of due process. The court's definitions of actual and constructive possession adequately presented the law on these subjects (see State v. Lewis, 249 Ga. 565, 292 S.E.2d 667), and the instruction on recent possession, particularly in the context of the court's emphasis on presumption of innocence, could by no means be considered prejudicial to the defendants. This latter instruction authorized the jury to infer guilt, if they saw fit to do so, from recent possession of the stolen property unless the defendants should make a satisfactory explanation of their possession. The explanation offered was that the elusive "Johnny Hill" had come by in the stolen van and offered to take them to buy some beer and then to Georgia Tech to sign up to work at the football game. Such explanation must have been unpersuasive in view of their observed conduct at the closed auto parts firm and subsequent flight. The instruction given was clear and correct and did not shift the burden of proof to the defendants. Jackson v. State, 159 Ga.App. 287, 283 S.E.2d 353; James v. State, 162 Ga.App. 490, 292 S.E.2d 91.

3. Appellants' final enumeration of error is that the court refused to instruct on the legal effect of the accused's presence at the crime scene. "It is, of course, true that mere proof of the accused's presence at the scene of the crime, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction. [Cits.] However, in the present case, the state's evidence showed more than the mere presence of the appellant at the scene of the crime." Muhammad v. State, 243 Ga. 404, 405, 254 S.E.2d 356. In the instant case we have the additional evidence of flight. The instructions were full and fair on the presumption of innocence, burden of proof, and reasonable doubt. The court's charge to the jury must be looked at as a whole, and the record discloses that the instructions as a whole were accurate, impartial, and in no way prejudicial to the defendants. Lavender v. State, 234 Ga. 608, 216 S.E.2d 855.

Judgment affirmed.

McMURRAY, C.J., SHULMAN, P.J., and BANKE, BIRDSONG and POPE, JJ., concur.

DEEN, P.J., and CARLEY and SOGNIER, JJ., concur specially.

DEEN, Presiding Judge, concurring specially.

I believe that, with reference to the appropriate standard for reviewing the denial of a motion for directed verdict, this court should follow Conger v. State, 250 Ga. 867, 301 S.E.2d 878 (1983), rather than Lee v. State, 247 Ga. 411, 276 S.E.2d 590 (1981). The Conger case is a later expression of the Georgia Supreme Court than Lee, and represents a unanimous decision. By contrast, Lee, in addition to being an earlier decision, contains a dissent. Moreover, Conger, at 870, employs the words of the controlling statute: "Nor can we agree with the defendant that the trial court erred in failing to direct a verdict of acquittal. We cannot say that there was 'no conflict in the evidence and the evidence... demand[ed] a verdict of acquittal.' OCGA § 17-9-1 (formerly Code Ann. § 27-1802)."

The opinion in Conger exemplifies the proper application of two distinct standards in two distinct procedural situations. The statutory standard for granting a motion for directed verdict of acquittal authorizes the trial court to direct the verdict "[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or 'not guilty' ..." (Clearly, the statute refers to competent and probative evidence and not to irrelevant, immaterial, or self-serving statements or documents proffered in a desperate effort to distract the fact-finder or distort his perspective.)

Upon a thoughtful reading of the statute one can see that the phrase "where there is no conflict in the evidence" can be accurately paraphrased as "where all the evidence is in agreement." The logical corollary is that where there is any piece of evidence which does not agree with--or points to a different conclusion from--the rest of the evidence, then there exists "a conflict in the evidence," and direction of a verdict of acquittal is inappropriate. This is obviously the rationale underlying the development of the traditional "any evidence" standard of review.

In ruling on a motion for a directed verdict of acquittal, the trial court, under the mandate of the cited statutory provision, is looking for a "conflict in the evidence" which would vitiate the movant's assertion that "the evidence with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or 'not guilty.' " In other words, when considering a motion for a directed verdict of acquittal made at the close of the state's evidence (as in the instant case), the trial court is looking for any competent evidence contrary to, or in conflict with, the defendant's assertion that the evidence demands acquittal. At this point in the proceedings the trial court is not deciding whether or not, upon presentation of the entire case, the conflicting piece or pieces of evidence would be sufficient to authorize a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Denial of the motion means merely that the court is of the opinion, at that stage in the trial, that the evidence presented does not "demand" a verdict of acquittal. In terms of burden of proof a delicate equilibrium exists at this point: the defendant as defendant is still cloaked in the presumption of innocence that protects him from the very beginning of the criminal proceedings, but nevertheless as movant he must carry the statutorily imposed burden of showing that acquittal is the only verdict the evidence will allow. When seen in this perspective, the "any evidence" standard, although on its face a lesser standard than "beyond a reasonable doubt," is in reality "lesser" with regard to evidence of innocence rather than...