Parker v. State, A00A0254.

• Decision Date: 12 June 2000
• Docket Number: No. A00A0254.,A00A0254.
• Citation: 244 Ga. App. 419,535 S.E.2d 795
• Parties: PARKER v. The STATE.
• Court: Georgia Court of Appeals

535 S.E.2d 795

244 Ga. App. 419

PARKER v. The STATE.

No. A00A0254.

Court of Appeals of Georgia.

June 12, 2000.

Lovett Bennett, Jr., Statesboro, for appellant.

Richard A. Malone, District Attorney, for appellee. ANDREWS, Presiding Judge.

Gerald Parker was convicted of armed robbery by a jury. He was sentenced to a term of life imprisonment. On appeal, Parker raises 13 points of error. Finding no error, we affirm.

1. Parker first challenges the sufficiency of the evidence to support his conviction.

"On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 ((1979)). Howard v. State, 261 Ga. 251, 252, 403 S.E.2d 204 ((1991)); King v. State, 213 Ga.App. 268, 269, 444 S.E.2d 381 ((1994)). Conflicts in the testimony of the witnesses, including the State's witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, the jury's verdict will be upheld. Searcy v. State, 236 Ga. 789, 790, 225 S.E.2d 311 ((1976)). Grier v. State, 218 Ga.App. 637, 638(1), 463 S.E.2d 130 ((1995)). (Furthermore,) the testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-4-8." (Citations and punctuation omitted.) Grisson v. State, 225 Ga.App. 816, 817-818, 484 S.E.2d 802 (1997).

Hagood v. State, 228 Ga.App. 693, 694(2), 492 S.E.2d 606 (1997).

Applying this standard to the present case, we find sufficient evidence to support conviction for armed robbery. Kimbrough Dunaway, the victim, testified that Parker stole cash money from the register drawer of the convenience store, located in Emanuel County, where she was working on April 20, 1996. She further testified that, during the course of the theft, Parker produced a knife which he exposed toward her. She allowed Parker to take the money, and he then left the store.

Evidence was also introduced of two similar transactions where Parker robbed stores occupied by lone female clerks. Both of these clerks positively identified Parker as the person who robbed them with a knife. Both of these incidents took place in the months immediately preceding this robbery, and both transpired in a neighboring county.

The State further introduced into evidence a tape of an interview with Parker regarding the robbery. The interview was taped without his knowledge. It was made after Parker had been read his rights and was judged proper and admissible by the trial judge.

The evidence supporting the conviction can be summarized as follows: (1) The crime took place in Emanuel County, Georgia. (2) Parker was the perpetrator of the crime. (3) Property was taken. (4) The theft occurred in the "immediate presence" of the victim. See Welch v. State, 235 Ga. 243, 219 S.E.2d 151 (1975); Battle v. State, 155 Ga.App. 541, 271 S.E.2d 679 (1980); Wilson v. State, 207 Ga.App. 528, 428 S.E.2d 433 (1993). (5) Parker was in possession of an offensive weapon, a knife. (6) Parker "pulled a knife out" during the commission of the robbery. (7) Based on these facts, a reasonable jury could find the requisite intent on the part of Parker. These facts are sufficient to support a verdict of guilty of armed robbery.

2. Parker's second enumeration is that the trial judge erred in failing to grant a new trial because the judgment was contrary to the weight of the evidence, based on OCGA § 5-5-21 which states: "The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding."

"A trial judge's denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict." Ricketson v. Fox, 247 Ga. 162, 163(2), 274 S.E.2d 556 (1981). As noted in Division 1, there is evidence supporting the verdict. The trial court's decision will not be disturbed.

3. Parker's third enumeration is that it was error to allow a police officer to testify in a similar transactions hearing about information he had gathered from witnesses. Hearsay testimony to establish the similarity of other transactions is allowed when given by a law enforcement official who actually investigated and has personal knowledge of the other transactions. Jackson v. State, 217 Ga.App. 485, 458 S.E.2d 153 (1995); Castellon v. State, 240 Ga.App. 85, 522 S.E.2d 568 (1999). Also, prosecuting attorneys are permitted to state directly to the court what evidence they are prepared to produce. Such a statement by the prosecuting attorney alone is sufficient in a pretrial hearing regarding the admissibility of similar transactions evidence. Houston v. State, 187 Ga. App. 335, 370 S.E.2d 178 (1988); Hall v. State, 181 Ga.App. 92, 351 S.E.2d 236 (1986). The trial court's decision was correct.

4. Parker's fourth enumeration is without merit. Appellant contends that the trial court committed error in admitting the evidence of similar transactions because the potential prejudice to him exceeded the probative value of the evidence.

Before it can introduce evidence of a similar transaction, the State is required to make three affirmative showings. The State must show: (1) that the evidence is not being introduced for some improper purpose but rather for an appropriate purpose which is an exception to the general rule of inadmissibility; (2) sufficient evidence to show the accused committed the other offense; and (3) sufficient connection or similarity between the other offense and the crime charged such that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642, 409 S.E.2d 649 (1991). In a hearing the court found:

the State seeks to introduce evidence of [similar transactions] to show identity, motive, plan, scheme, bent of mind, and course of conduct, and that ... outweighs its prejudicial impact. And this is an appropriate purpose. There is sufficient evidence to establish that the accused committed these ... acts and ... there is a sufficient similarity between these [acts] and the crimes charged so that proof of the former tends to prove the latter.

We agree and conclude that the evidence was admissible.

The trial court has broad discretion to exclude otherwise admissible evidence if the probative value is outweighed by its tendency to cause undue prejudice, to confuse the issues, to unduly consume time, to mislead the jury, or unfairly surprise the opposing party. Candler v. Byfield, 160 Ga. 732, 739, 129 S.E. 57 (1925); Ludwig v. J.J. Newberry Co., 78 Ga.App. 871, 875(2), 52 S.E.2d 485 (1949) (Ludwig points out that the mere fact that evidence will harm the case of the opposing side does not show undue prejudice); Frederick v. State, 226 Ga.App. 540, 542, 487 S.E.2d 107 (1997).

Moreover, Parker waived any claim that the potential prejudice exceeded the probative value of the evidence because no objection was made on this ground when the evidence was introduced at trial. When this evidence was introduced, the sole objections were to the similarity of the offenses and as to the form of the jury instructions regarding similar transactions evidence. The matter of undue prejudice was not raised to the trial judge and was not passed upon.

5. In his fifth enumeration of error, Parker asserts that the trial court erred in admitting a videotaped interview by a police officer with Parker. Parker had twice been advised of his Miranda rights and consented to an interview with the detective. He was unaware that he was being videotaped. At the hearing for new trial Parker raised this issue but noted:

I believe the case of the [Carswell v. State, 268 Ga. 531, 491 S.E.2d 343 (1997) ], however, which has been rendered by the Supreme Court after we prepared this brief may keep us from raising that issue. I think the Supreme Court is pretty clear that it doesn't matter if the defendant knows he's being videotaped or not, apparently that's not an error.

He was correct. Nonetheless, Parker has raised the issue again on appeal. Carswell stated the general proposition that there can be no "reasonable subjective expectation of privacy associated with a suspect's statements made during an interrogation session held in a police station." Carswell, 268 Ga. at 533, 491 S.E.2d 343. This holding was directly related to the admission of a videotaped interview of a suspect in the police station without the suspect's knowledge that the interview was being taped. The admission of the videotaped interview was not error.

6. The sixth enumeration is that the trial court erred in admitting the tape because it contains information regarding drug use and past domestic problems thereby putting Parker's character in issue.

While it is generally true that the defendant's character cannot be put in issue in a criminal case unless the defendant chooses to put character in issue, material evidence does not become inadmissible simply because it incidentally places the defendant's character in issue. Hall v. State, 264 Ga. 85, 441 S.E.2d 245 (1994); Moss v. State, 148 Ga.App. 459, 251 S.E.2d 374 (1978). Further, this evidence was independently relevant as it, at a minimum, explained the defendant's motive. Hall, 264 Ga. at 86, 351 S.E.2d 236. In light of this standard, we cannot say that the admission of the videotape and its contents improperly put the defendant's character in issue. There was no error.

7. In his seventh enumeration of error, Parker claims that the trial court committed error in...