McFarren v. State

• Decision Date: 15 November 1993
• Docket Number: No. A93A2276,A93A2276
• Citation: 210 Ga.App. 889,437 S.E.2d 869
• Parties: McFARREN v. The STATE.
• Court: Georgia Court of Appeals

Page 869

437 S.E.2d 869

210 Ga.App. 889

McFARREN v. The STATE.

No. A93A2276.

Court of Appeals of Georgia.

Nov. 15, 1993.

Robert H. Suttles, Jonesboro, for appellant.

Keith C. Martin, Sol., for appellee.

BLACKBURN, Judge.

On January 4, 1993, the appellant, Benjamin Andrew McFarren, was given a uniform traffic citation for loitering or prowling, in violation of OCGA § 16-11-36. A formal accusation was subsequently issued charging him with the offense on February 2, 1993. Following a trial by jury, he was found guilty and sentenced to 12 months in jail. His motion for new trial was subsequently denied by the trial court on May 7, 1993, and this appeal followed.

At trial, the state's evidence showed that, on the evening of January 4, 1993, between 10:30 p.m. and 11:00 p.m., McFarren was seen by a resident standing in the front yard of a home in a Clayton County subdivision peering into a window of the home. McFarren was standing approximately eight feet from the window. McFarren subsequently crossed the street and entered the yard of another home and looked through a window. Although McFarren had been working with a builder in the subdivision in the construction of new homes in the area, he admitted that at that time of the evening, he had completed his work for the day. The local police were summoned, and McFarren was apprehended on a street in the immediate vicinity as an individual fitting the description given of the prowler.

In an effort to explain his presence, McFarren informed the police that he was in the area for the purpose of obtaining a saw that he had left there earlier. However, the saw was not found in McFarren's possession. McFarren was identified by the resident as the prowler, and given a citation for his conduct. He was not placed under arrest.

Over McFarren's objection, evidence of a similar occurrence was admitted. This evidence showed that on October 12, 1992, three months earlier, McFarren's truck was seen by the resident and his wife in the front of a partially constructed vacant home in the subdivision at approximately 9:00 in the evening. Approximately three-and-one-half hours later, McFarren was seen looking into the residents' window while standing in the residents' front yard. McFarren was later apprehended on that date in the partially constructed home. He indicated that he had been looking for keys to his motorcycle.

In addition to other witnesses presented by the defense, McFarren testified and denied that he had been standing in any of the yards of the neighborhood. He stated that he only walked down the streets of the neighborhood after he began having mechanical problems with his truck. However, the truck started without difficulty in the presence of the police officers.

1. In his first enumeration of error, McFarren maintains that the evidence was insufficient to support the verdict. Specifically, he maintains that the evidence was circumstantial in nature and did not exclude every reasonable hypothesis except that of his guilt. We disagree.

OCGA § 16-11-36(a) provides that "[a] person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." Contrary to McFarren's contentions, the state presented direct testimony that McFarren was seen peering into the windows of neighborhood homes at 11:00 p.m. McFarren offered an explanation of his presence at such an unusual hour, which the jury was authorized to reject.

In his third enumeration, McFarren challenges the resident's identification of him as the prowler. "Although [McFarren] contends [the resident's] identification of him was not credible, the question of a witness's credibility is for the jury to decide. [Cit.]" Evans v. State, 207 Ga.App. 358, 359, 427 S.E.2d 837 (1993). "[T]his court does not reweigh the evidence but only determines its legal sufficiency. [Cits.]" Holcomb v. State, 198 Ga.App. 547(1), 402 S.E.2d 520 (1991). Under the circumstances, we must conclude that the evidence was sufficient to enable any rational trier of fact to find McFarren guilty beyond a reasonable doubt of the offense charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Pinkston v. State, 189 Ga.App. 851, 377 S.E.2d 864 (1989). Accordingly, enumerations of error 1 and 3 are without merit.

2. Next, McFarren challenges the trial court's admission of evidence of the similar occurrence of October 12, 1992, inasmuch as the incident did not result in a police report or an arrest. However, contrary to McFarren's contentions, "[i]n order for a similar transaction to be admissible, it is not required that the transaction resulted in a conviction." (Citations and punctuation omitted.) Sartin v. State, 203 Ga.App. 293, 296(3b), 416 S.E.2d 572 (1992).

We further reject McFarren's contention that the trial court erred in admitting the evidence of this prior occurrence when the state failed to comply with the ten-day notice requirement of Uniform Superior Court Rule 31.1. "Although Rule 31.1 requires the notice to be filed at least 10 days before the trial, it authorizes the exercise of a trial court's discretion by providing that the trial court may shorten or lengthen the time for compliance with the rule. [Cit.]" Thaxton v. State, 260 Ga. 141, 144(6), 390 S.E.2d 841 (1990); Willis v. State, 202 Ga.App. 447, 449(2), 414 S.E.2d 681 (1992). In Thaxton, our Supreme Court held that the trial court did not abuse its discretion in finding that the five days' notice provided to the defendant therein was sufficient. Likewise, in Willis, we found that the trial court did not abuse its discretion in holding that six days' notice was sufficient. See also Thompson v. State, 186 Ga.App. 421(2), 367 S.E.2d 586 (1988) ...