Marshall v. State
| Decision Date | 08 September 1999 |
| Docket Number | No. A99A0969.,A99A0969. |
| Citation | 239 Ga. App. 850,522 S.E.2d 273 |
| Parties | MARSHALL v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Stanley C. House, Augusta, for appellant.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
David Carl Marshall was convicted by a Richmond County jury of burglary and armed robbery. Marshall enumerates as error the trial court's denial of his motion for a directed verdict, charges to the jury on reasonable doubt and reasonable doubt as to identity, and denial of his motion for a new trial. He also claims that counsel was ineffective and that the evidence was insufficient to authorize the verdict. We find no merit in these enumerations of error, and we affirm.
Viewing the evidence in a light most favorable to the jury's verdict, Gracie Watson and Lucille Levert, two elderly sisters and house mates, received their monthly Social Security and Veterans Administration checks on November 1, 1995. When the mail arrived, the sisters immediately took the checks to the grocery store to cash the checks and settle their outstanding bill with the store. Marshall, who evidently had seen the sisters retrieve the checks from their mail, followed them into the grocery store. Marshall asked them if they had cashed their checks and then demanded "his money" for a "hot pad." The store owner ordered Marshall to leave and he did. The sisters returned home to find Marshall had broken into their house. He grabbed a screwdriver and held it to Watson's throat, forcing her onto the bed. Although the sisters attempted to resist, Marshall was able to take $300 from Watson.
1. In his first and second enumerations of error, Marshall claims the evidence was insufficient to authorize the verdict and that the trial court erred in denying his motion for a directed verdict. We must reverse if "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The State has the burden of proving Marshall's identity as the perpetrator of the offense. See Mallory v. State, 271 Ga. 150, 152-153(4), 517 S.E.2d 780 (1999); Hodges v. State, 147 Ga.App. 434, 249 S.E.2d 149 (1978). When asked if the man who had approached her about the heating pad was in the court room, Watson responded, "I don't see him," although she did testify on redirect examination that Marshall looked like her attacker. Levert was also unable to identify Marshall as her assailant.
Alphonzo Williams, a detective for the Augusta Police Department, testified that Watson and Levert had, separately, been shown 18 photographs, and that each immediately identified Marshall as their attacker. Williams also testified that each showed a high degree of certainty in identifying the appellant.
Although Marshall was not identified unequivocally in court, this does not require a reversal. Boscaino v. State, 186 Ga.App. 133(1), 366 S.E.2d 789 (1988). Hatcher v. State, 175 Ga.App. 768, 769, 334 S.E.2d 709 (1985).
After reviewing the evidence in a light most favorable to the verdict, we find that the State produced evidence from which a rational trier of fact could have found Marshall guilty of burglary and armed robbery beyond a reasonable doubt. 2. In his third and fourth enumerations of error, Marshall challenges the trial court's jury charges on reasonable doubt and reasonable doubt as to identity. Marshall made no objection to these jury charges at trial. "[A] failure to object [to a jury charge] in a criminal case constitutes a waiver unless there has been substantial error which is harmful as a matter of law." Early v. State, 218 Ga.App. 869, 870, 463 S.E.2d 706 (1995).
We find no error in the trial court's charge to the jury regarding reasonable doubt. This court has upheld a charge which contains language nearly identical to the language complained of by Marshall. Andrews v. State, 236 Ga.App. 152, 511 S.E.2d 258 (1999).
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