Perkins v. State, A89A1604
| Citation | 194 Ga.App. 189,390 S.E.2d 273 |
| Decision Date | 09 January 1990 |
| Docket Number | No. A89A1604,A89A1604 |
| Parties | PERKINS v. The STATE. |
| Court | Georgia Court of Appeals |
John D. McCord III, Buford, for appellant.
Robert E. Wilson, Dist. Atty., Robert M. Coker, Shawn E. LaGrua, R. Stephen Roberts, Asst. Dist. Attys., for appellee.
Defendant Kenneth Wayne Perkins appeals from his conviction on two counts of armed robbery and one count of possession of a firearm during the commission of a crime. Defendant does not deny that he, along with two other perpetrators, participated in the robbery but denies he was armed.
1. We reject defendant's argument that he is entitled to a new trial because insufficient evidence was presented to convict him of possession of a firearm during the commission of the crime. Both victims testified that one of the other perpetrators claimed to have a gun and threatened to use it if they did not surrender their money and jewelry. One of the victims testified he saw the end of the gun sticking out of the robber's pants pocket. Defendant may properly be convicted of possession of a firearm during the commission of a crime (OCGA § 16-11-106(b)) on the ground that he was a party or aider or abettor to the offense (OCGA § 16-2-20). Wilcox v. State, 177 Ga.App. 596, 340 S.E.2d 243 (1986). We also reject defendant's argument that his conviction was improper because the indictment charging him with possession of a handgun "on his person" fatally varied from the evidence that one of the other perpetrators possessed a handgun. Wright v. State, 165 Ga.App. 790(1), 302 S.E.2d 706 (1983).
2. The trial court granted the State's request to charge that presence and conduct are circumstantial evidence of criminal intent. However, the trial transcript of this charge reads as follows: "I charge you that presence, companionship, and conduct before and after the offense or circumstances from which one's participation in a criminal attempt may be inferred." (Emphasis supplied.) Defendant argues the charge is syntactically improper and confusing and is erroneous and irrelevant in its reference to criminal attempt because criminal attempt is not at issue in this case. However, the charge reported in the transcript is virtually identical to the charge properly requested by the State if the word "are" is substituted for "or" and if "intent" is substituted for "attempt." The improper words are homonyms for the words which should properly have been charged. We conclude that "or" and "attempt" are merely errors in the transcript of the charge and that no error was made in the charge actually given to the jury. Defendant's counsel expressly stated at the conclusion of the charges that he "did not note any omissions or misreadings in the charge." Consequently, any objection to the charge was waived.
3. Defendant argues the trial court committed reversible error in giving a charge on the distinction between actual and constructive possession. We agree that the charge given is appropriate to cases involving possession of a controlled substance whereas the definition of possession in regard to the offense of possession of a firearm during the commission of a crime, as set forth by OCGA § 16-11-106(b), is to "have on or within arm's reach of [one's] person." However, we note that the trial court correctly charged the jury on the issue of guilt by being a party to or aiding or abetting in a crime. Moreover, we conclude that any confusion which might have been caused by the charge on constructive possession was corrected by the trial court's recharge, in response to questions submitted by the jury, on the issue of possession of a firearm by one of the other perpetrators of the...
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Hindman v. State
...his co-defendants were joint conspirators. See Coursey v. State, 196 Ga.App. 135-136(1), 395 S.E.2d 574 (1990); Perkins v. State, 194 Ga.App. 189, 190(1), 390 S.E.2d 273 (1990). "The act of either was the act of the other and each is as fully responsible for the act of the other as if he ha......
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Wakily v. State
...the defendant with being a party to a crime in order for the State to prove his culpability in that manner. Perkins v. State, 194 Ga.App. 189, 190(1), 390 S.E.2d 273 (1990). The trial court properly instructed the jury on OCGA § 8. The trial court properly sentenced Wakily. In sentencing hi......
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Victrum v. State, MAYCOCK-BECKLES
...or aider or abettor to the offense (OCGA § 16-2-20). Wilcox v. State, 177 Ga.App. 596, (340 SE2d 243) (1986)." Perkins v. State, 194 Ga.App. 189, 190(1), 390 S.E.2d 273 (1990). Contrary to defendant's argument, this case is not controlled by Mcintosh v. State, 185 Ga.App. 612, 365 S.E.2d 45......
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Davis v. State
...1. (Citations and punctuation omitted.) Hindman v. State, 234 Ga.App. 758, 763(2), 507 S.E.2d 862 (1998); accord Perkins v. State, 194 Ga.App. 189, 190(1), 390 S.E.2d 273 (1990). 2. See Wakily v. State, 225 Ga.App. 56, 60(7), 483 S.E.2d 313 (1997); Perkins, supra (no fatal variance where in......