Parker v. State, 73151

• Decision Date: 23 January 1987
• Docket Number: No. 73151,73151
• Citation: 181 Ga.App. 590,353 S.E.2d 83
• Parties: PARKER v. The STATE.
• Court: Georgia Court of Appeals

Page 83

353 S.E.2d 83

181 Ga.App. 590

PARKER v. The STATE.

No. 73151.

Court of Appeals of Georgia.

Jan. 23, 1987.

Barbara S. Arthur, Rossville, for appellant.

David L. Lomenick, Jr., Dist. Atty., Amy E. Abernathy, Asst. Dist. Atty., for appellee.

BEASLEY, Judge.

Convicted of arson in the first degree (OCGA § 16-7-60), defendant appeals.

1. The first enumeration of error addresses the failure to direct a verdict of acquittal which raises the sufficiency of the evidence.

" ' "Three things are necessary to sustain a conviction for arson: that the real property alleged in the indictment was in fact burned, that its cause was a criminal agency, and that the defendant was that criminal agency." ' " Bragg v. State, 175 Ga.App. 640, 641(1), 334 S.E.2d 184 (1985). Accord Campbell v. State, 169 Ga.App. 112, 114, 312 S.E.2d 136 (1983).

Defendant concedes the presence of the first element but contends the state failed to prove the other two. Fires are presumed to be the result of accidental or providential cause and the burden is on the state to prove the particular fire was of incendiary origin. Lockhart v. State, 76 Ga.App. 289, 293(1), 45 S.E.2d 698 (1947); Wade v. State, 195 Ga. 870, 875(2), 25 S.E.2d 712 (1943). However, following conviction and approval of the verdict by the trial court, the evidence is construed favorably to the verdict. Powell v. State, 171 Ga.App. 876, 877, 321 S.E.2d 745 (1984).

Here two fires occurred in the stockroom of the back of a grocery store after the assistant store manager refused to cash a check tendered by defendant's wife. One was behind some pallets in the stockroom and one was in a trash can some distance away in the produce stock area. An arson investigator testifying as an expert witness opined that there were "two separate set fires," and he related the basis for his opinion. This was sufficient to create an issue for the jury.

Although circumstantial, the evidence was also sufficient to identify the defendant as the perpetrator. One of the store employees saw defendant behind the pallets where within a few minutes one of the fires was discovered. Defendant told the employee he was looking for dog food but when informed it was at the front of the store, walked the other way. The assistant store manager saw defendant coming out the doors of the produce stockroom. No one else was seen in the area near the time of the fires. Defendant was arrested by police summoned to the scene of the fire, after he drove his truck into a pole as he left. At that time he stated he did not go into the stockroom at any time. Later, on the stand, he testified he went to the restroom in the stockroom following the directions of an unidentified store employee. Even though the motion was made and ruled on before defendant presented his evidence, on appeal we consider it all. Bethay v. State, 235 Ga. 371, 374(1), 219 S.E.2d 743 (1975); Causey v. State, 154 Ga.App. 76, 77, 267 S.E.2d 475 (1980).

Even if we consider only the state's evidence, a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Burns v. State, 166 Ga.App. 766, 768(3), 305 S.E.2d 398 (1983); Kennedy v. State, 172 Ga.App. 336, 340(4), 323 S.E.2d 169 (1984). Acquittal was not demanded.

2. It is argued that the trial court erred in admitting into evidence defendant's statement that he was not in the stockroom on the night in question.

No objection was made at the time, and hence the issue was not raised or ruled on, so there is no trial court action to review. Keno v. Alside, Inc., 148 Ga.App. 549, 551(3), 251 S.E.2d 793 (1978); Pulliam v. State, 236 Ga. 460, 465, 224 S.E.2d 8 (1976).

Moreover, " '[a]fter a crime has been committed, any attempt by a person who is subsequently accused of the crime to mislead the investigating officers is generally relevant and admissible, and any attempt by such person to obstruct an investigation of an issue is relevant on the trial of such issue.' " Moon v. State, 154 GA.App. 312, 315(5), 268 S.E.2d 366 (1980). The broad premise is that a statement or conduct by defendant which indicates a consciousness of guilt is admissible against him. Bridges v. State, 246 Ga. 323, 324(2), 271 S.E.2d 471 (1980). A statement which is intended as exculpatory may turn out to be inculpatory and admissible as such when contradicted, when shown to be false, or when balanced with other facts. Johnson v. State, 144 Ga.App. 568, 569(2), 241 S.E.2d 458 (1978); Thomas v. State, 176 Ga.App. 771(2), 337 S.E.2d 344 (1985).

No reversible error is shown by this ground. Pendergrass...