Prothro v. State

• Decision Date: 13 April 1988
• Docket Number: 76015,Nos. 76014,s. 76014
• Citation: 186 Ga.App. 836,368 S.E.2d 793
• Parties: PROTHRO v. The STATE. CLARK v. The STATE.
• Court: Georgia Court of Appeals

Page 793

368 S.E.2d 793

186 Ga.App. 836

PROTHRO v. The STATE.

CLARK v. The STATE.

Nos. 76014, 76015.

Court of Appeals of Georgia.

April 13, 1988.

Paul E. Weathington, Atlanta, for appellant in No. 76014.

T. Christopher Pyles, for appellant in No. 76015.

William G. Hamrick, Jr., Dist. Atty., Peter J. Skandalakis, Asst. Dist. Atty., for appellee.

CARLEY, Judge.

Appellants were co-indicted for the offense of burglary. They were jointly tried before a jury and both were found guilty. Each appellant filed a separate appeal from the respective judgment of conviction and sentence that was entered on the guilty verdict returned against him. Appellants' separate appeals are hereby consolidated for appellate disposition in this single opinion.

1. The general grounds are enumerated.

Appellants contend that the evidence presented at trial was insufficient to establish an unauthorized entry of the premises which were alleged to have been burglarized. " 'Burglary ... involves the criminal necessarily placing himself within some building or other structure named in the statute.' [Cits.] 'Without proof of entry, a conviction for burglary cannot stand.' [Cits.]" Maynard v. State, 170 Ga.App. 683, 684(1), 317 S.E.2d 666 (1984). The evidence which was produced at trial as to appellants' entry of the building, while circumstantial, was sufficient to establish that they had done so.

Appellants also urge that the evidence was insufficient to establish their intent to commit a theft in the premises. The evidence presented at trial showed that, among the other effects, there were items of gold and diamond jewelry located inside the premises. "The evidence reveals there were valuable effects in the building. The jury was authorized to infer from this that there was an intent to commit theft. [Cit.]" Bowen v. State, 128 Ga.App. 577(1), 197 S.E.2d 738 (1973). See also Parrish v. State, 141 Ga.App. 631(1), 234 S.E.2d 174 (1977). " 'Whether the defendant entertained an intent to commit a [theft] after entering is a matter for the jury to say, under the facts and circumstances proved. [Cit.] As a general rule the [S]tate must, of necessity, rely on circumstantial evidence in proving intent. [Cit.] And the fact that defendant may have failed in accomplishing his apparent purpose does not render a finding of burglary improper. [Cits.]' [Cits.]" Kinney v. State, 155 Ga.App. 95-96(1), 270 S.E.2d 209 (1980).

After a review of the entire record in the light most favorable to the verdict, we find that a rational trior of fact could reasonably have found from the evidence produced at trial, proof of appellants' guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

2. The trial court instructed the jury that it would be authorized but not required to infer an intent to steal from evidence which showed the unlawful entry of another's building wherein valuables were stored or kept. The giving of this charge is enumerated as error. As previously discussed in Division 1, however, the instruction states a legally correct principle of the law and there was sufficient evidence presented at trial to authorize the giving of the instruction in this case. See Parrish v. State, supra at 631(1); Bowen v. State, supra at 577(1); Bradshaw v. State, 172 Ga.App. 330, 331(2), 323 S.E.2d 253 (1984).

3. The trial court denied appellant Clark's motion to suppress certain evidence which was found during a police search of his automobile on the night of the incident. The trial court's denial of this motion is enumerated as error.

It is undisputed that appellant Clark was the owner of the automobile. However, the evidence also showed that he had loaned his car to a third party and was not in possession of the automobile at the time of the search. Where the owner of an automobile relinquishes actual possession to a third party, the owner thereby abandons any expectation of privacy in the automobile, and he therefore lacks standing to contest the legality of the search and seizure of the vehicle. See United States v. Nunn, 525 F.2d 958, 959 (5th Cir.1976). See also United States v. Dyar, 574 F.2d 1385, 1390(6) (5th Cir.1978), cert. denied, 439 U.S. 982, 99 S.Ct. 570, 58 L.Ed.2d 653 (1978). Accordingly, the trial court correctly denied appellant Clark's motion to suppress.

4. Appellant Clark enumerates as error the trial court's admission of certain evidence.

There was no objection to the trial court's admission of appellant Prothro's shoes into evidence. No error can be raised on appeal as to the improper admission of evidence unless a proper objection has first been made at trial. Hicks v. State, 216 Ga. 574, 575(1), 118 S.E.2d 364 (1961).

Appellant Clark did object to the admission of chips of a concrete block which were found on the floorboard of the back seat of his automobile. However, that objection consisted only of the bare assertion that the evidence was irrelevant. "An objection to evidence on the ground that it is irrelevant ... is 'entirely too vague and general to present any question for determination by the trial court, and the...