Sharp v. State

• Decision Date: 14 July 1989
• Docket Number: No. A89A1248,A89A1248
• Citation: 385 S.E.2d 23,192 Ga.App. 353
• Parties: SHARP v. The STATE.
• Court: Georgia Court of Appeals

Page 23

385 S.E.2d 23

192 Ga.App. 353

SHARP v. The STATE.

No. A89A1248.

Court of Appeals of Georgia.

July 14, 1989.

C. Richard Williams, Jr., Valdosta, for appellant.

H. Lamar Cole, Dist. Atty., J. David Miller, Asst. Dist. Atty., for appellee.

SOGNIER, Judge.

Lamar Sharp was convicted of burglary and escape and he appeals.

1. In his first two enumerations of error, appellant questions the sufficiency of the evidence to support his conviction of burglary, arguing that the State showed only appellant's presence at the scene of the crime, which is insufficient to support a conviction. See Crumley v. State, 185 Ga.App. 795, 796, 366 S.E.2d 171 (1988). We do not agree.

The evidence adduced at trial, viewed to support the jury's verdict, showed that in the early morning hours of August 4, 1988, Lowndes County police on routine patrol noticed a broken window in the front door of a lounge in Valdosta. The county police notified the city police department, which investigated. Several city police officers testified that upon entering the lounge, which was closed for the day, they found beer and wine coolers on a pool table and cigarettes and cigarette lighters piled on the floor, and eventually located appellant hiding behind a video game machine. An employee who had closed the lounge that night testified that everything was in order when she left, that she had seen someone who looked like appellant outside the lounge at closing time, and that she had not authorized appellant to enter the lounge after closing. The lounge's owner, Ida Mae Nelson, testified that thirteen lighters were missing. Nelson also testified that several weeks before trial she spoke on the telephone with a person whose voice she recognized as that of appellant, who admitted breaking into the lounge, and apologized.

We find this evidence sufficient for a rational trier of fact to find appellant guilty beyond a reasonable doubt of burglary. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Notwithstanding appellant's argument that Nelson's testimony regarding the telephone call was not credible, leaving only the evidence of appellant's mere presence at the scene, which is insufficient to support the conviction of burglary, " '[t]he credibility of a witness is a matter for the trier of fact, and this court will not disturb the jury's finding unless it is insupportable as a matter of law. (Cit.) Since we do not find that to be the situation in the case at bar, we will not disturb the jury's finding.' [Cit.]" Burroughs v. State, 186 Ga.App. 40, 41(1), 366 S.E.2d 378 (1988).

2. Appellant also contends the trial court erred in its charge on burglary by failing to instruct the jury that the State bore the burden of proving beyond a reasonable doubt that appellant intended to commit a theft, and by failing to define for the jury the term "theft."

(a) " ' "The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. (Cits.) ..." [Cit.]' [Cit.]" Johnson v. State, 187 Ga.App. 803, 804(3), 371 S.E.2d 419 (1988). Our review of the charge as a whole persuades us that the trial court charged the jury adequately on intent. Before any evidence was introduced the trial court addressed the jury in preliminary remarks regarding the presumption of innocence, burdens of proof, and reasonable doubt, and specifically cautioned them that the State had the burden of proving each element of the offense beyond a reasonable doubt. In his charge to the jury at the conclusion of the case, the trial judge again repeated his instruction that the State must prove every essential element beyond a reasonable doubt; charged the jury that intent was an essential element of every crime and must be proved by the State beyond a reasonable doubt, and that intent to commit a theft was an element of the crime of burglary; and further instructed the jury that they could not presume intent, but...