Saine v. State

• Decision Date: 02 April 1984
• Docket Number: No. 68104,68104
• Citation: Saine v. State, 317 S.E.2d 650, 170 Ga.App. 610 (Ga. App. 1984)
• Parties: SAINE v. The STATE.
• Court: Georgia Court of Appeals

Page 650

317 S.E.2d 650

170 Ga.App. 610

SAINE v. The STATE.

No. 68104.

Court of Appeals of Georgia.

April 2, 1984.

M. Lynn Young, Gainesville, for appellant.

Bruce L. Udolf, Dist. Atty., Donald F. Chase II, Asst. Dist. Atty., for appellee.

DEEN, Presiding Judge.

Appellant Saine was found guilty of burglary and, as a recidivist, was sentenced to twenty years' imprisonment. The evidence adduced at trial consisted chiefly of testimony by the director of the youth center located next door to Saine's house, to the effect that the center had been burglarized on a certain weekend and several items taken; the testimony of a neighbor of Saine's that, while enjoying a nocturnal rest on his terrace that weekend, he had observed appellant and his co-defendant making several trips between the center and the nearby house of the co-defendant and carrying objects corresponding in size and shape to certain items missing from the center; and the testimony of investigating officers that they had found one of the missing items, a fan, in a wooded area immediately behind the co-defendant's house.

Saine appeals from his conviction, enumerating as error the sufficiency of the evidence, the alleged impropriety and prejudicial effect of the jury instruction regarding recent possession of stolen goods, and the court's consideration, in fixing the sentence, of prior convictions without notifying appellant before the trial that they would be used. Held:

1. Scrutiny of the record reveals that the evidence was sufficient to support the conviction. Appellant specifically argues, in reliance on OCGA § 24-4-6, that the state's evidence was circumstantial and that the proven facts do not "exclude very other reasonable hypothesis save that of the guilt of the accused." This court has held consistently that the exclusion of "every other reasonable hypothesis" does not mean that the criminal act might by bare possibility have been done by someone other than the accused, McGee v. State, 159 Ga.App. 763, 285 S.E.2d 224 (1981), and that the evidence need not remove every possibility of the defendant's innocence. Barfield v. State, 160 Ga.App. 228, 286 S.E.2d 516 (1981).

Moreover, the strictures of § 24-4-6 are applicable only when the state's case consists solely of circumstantial evidence. See, e.g. Ridley v. State, 232 Ga. 646, 208 S.E.2d 466 (1974); Wright v. State, 147 Ga.App. 111, 248 S.E.2d 183 (1978); Ennis v. State, 130 Ga.App. 716, 204 S.E.2d 519 (1974). In the instant case, there was also direct evidence in the form of extensive eyewitness testimony. OCGA § 24-1-1. The appellate court does not weigh the evidence, Redd v. State, 154 Ga.App. 373, 268 S.E.2d 423 (1980), but looks only to see whether sufficient competent evidence was adduced to authorize a reasonable trier of fact to find appellant guilty as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Crawford v. State, 245 Ga. 89, 263 S.E.2d 131 (1980). Our examination of the record, including the transcript, reveals that the evidence was sufficient to meet this standard. This enumeration is without merit.

2. Likewise without merit is appellant's assertion that the jury instruction on recent possession of stolen goods was not supported by the evidence and was prejudicial. The record reveals that the challenged instruction was a correct statement of the law and was authorized by the evidence. The discovery of one of the major missing items in close proximity to the dwelling of one of the co-defendants, when coupled with eyewitness testimony, was sufficient to warrant such a jury instruction. "[R]ecent unexplained possession of stolen items taken from ... burglarized [premises] ... create[s] an inference or presumption of facts sufficient to convict." Nash v. State, 166 Ga.App. 533, 535, 304 S.E.2d 727 (1983); McGee v. State, supra. See also Selph v. State, 142 Ga.App. 26, 234 S.E.2d 831 (1977); Lee v. State, 126 Ga.App. 38, 189 S.E.2d 872 (1972).

Moreover, the transcript discloses that appellant made no objection to the jury instruction on recent possession of stolen goods. By neither objecting at trial nor reserving the right to do so, he waived his right to enumerate error as to the charge. White v. State, 243 Ga. 250, 253 S.E.2d 694 (1979); Wilcox v. State, 153 Ga.App. 719, 266 S.E.2d 356 (1980).

3. Appellant correctly contends that the trial court may not consider prior convictions in aggravation, when setting the length of the sentence to be imposed. Mills v. State, 244 Ga. 186, 187, 259 S.E.2d 445 (1979); Munsford v. State, 235 Ga. 38, 218 S.E.2d 792 (1975). Prior convictions may properly be considered, however, in determining whether a sentence...