Sherls v. State, A05A0037.

• Decision Date: 11 March 2005
• Docket Number: No. A05A0037.,A05A0037.
• Citation: 272 Ga. App. 152,611 S.E.2d 780
• Parties: SHERLS v. The STATE.
• Court: Georgia Court of Appeals

611 S.E.2d 780

272 Ga. App. 152

SHERLS v. The STATE.

No. A05A0037.

Court of Appeals of Georgia.

March 11, 2005.

Terry N. Massey, Conyers, for Appellant.

Richard R. Read, District Attorney, Roberta A. Earnhardt, Assistant District Attorney, for Appellee.

ELLINGTON, Judge.

A Rockdale County jury convicted Don Clark Sherls, Jr. of theft by taking a motor vehicle, OCGA § 16-8-2. He appeals from the denial of his motion for new trial, claiming the evidence was insufficient to support his conviction and he was entitled to a directed verdict of acquittal. He also contends the trial court erred in excluding a videotape of the victim's statement to police and in admitting an impermissibly suggestive photographic lineup. Finding no error, we affirm.

1. Sherls contends the trial court erred in refusing to grant his motion for a directed verdict of acquittal based upon insufficient evidence. Sherls attacks the victim's identification testimony and her credibility and argues that a witness fabricated his story in order to stay out of jail. Further, relying on the fact that the police investigators did not find his fingerprints inside the car, he complains that there was no physical evidence to link him to the crime.

Where the sufficiency of the evidence is questioned on appeal, we determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As an appellate court, we do not weigh the evidence or assess witness credibility.

(Punctuation and footnotes omitted.) Standfill v. State, 267 Ga.App. 612, 600 S.E.2d 695 (2004). Viewed in this light, the evidence showed that at approximately 11:00 a.m. on December 30, 2002, the victim was driving her Mercedes when it was suddenly bumped from behind by a white Hyundai with two men inside. The victim, who was pregnant, immediately dialed 911 on her cell phone. She pulled her car to the side of the road and the Hyundai stopped behind her. The victim talked to the 911 operator while she got out of her car. Both men exited the Hyundai. One of the men walked toward her and the victim was able to get a good look at him. Suddenly, the man got into the driver's seat of her car. The victim tried to grab him as she was yelling at the 911 operator for help. The man drove away, with the Hyundai right behind him.

A police officer in the area received a dispatch about the theft and quickly found the Hyundai and Mercedes traveling together. After the officer activated his lights and siren, the two cars separated and drove off in different directions. The officer got the tag number of the Hyundai,¹ and followed the Mercedes until it spun out of control and stopped on the side of the road. The driver got out of the car and escaped into the woods near Stonecrest Mall.

The evidence also showed that Sherls called a friend on the day of the theft and asked the friend to pick him up at Stonecrest Mall. The friend testified at trial that he picked up Sherls at approximately 2:00 p.m., and Sherls told him the following facts: Sherls and another man had "bumped a lady's car"; the lady was pregnant; the car they bumped was a Mercedes or Lexus; Sherls got in the car and drove away; the police started chasing Sherls; and Sherls jumped out of the car near Stonecrest Mall and ran away. According to the friend, Sherls said he took the victim's car because he was planning to rob a bank. The friend reported this information to the police after he was stopped on an unrelated traffic violation. Based upon this information, investigators put together a photographic lineup which included Sherls' picture, and the victim "immediately" selected Sherls as the man who stole her Mercedes.

Although Sherls complains on appeal that the eyewitness testimony was unreliable, the witnesses lacked credibility, and the evidence was conflicting, it was the jury's responsibility to resolve the conflicts in the evidence, assess the credibility of the witnesses, and assign weight to the evidence. OCGA § 24-9-80; Standfill v. State, 267 Ga. App. at 612, 600 S.E.2d 695; Reid v. State, 235 Ga.App. 887, 888(1), 510 S.E.2d 851 (1999). "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." (Citations and punctuation omitted.) Reid v. State, 235 Ga.App. at 888(1), 510 S.E.2d 851. We find that the evidence, viewed in favor of the jury's verdict, was sufficient for a rational factfinder to conclude beyond a reasonable doubt that Sherls committed theft by taking a motor vehicle. Id. at 889(1), 510 S.E.2d 851.

2. Sherls claims the trial court erred by refusing his request to play for the jury portions of a videotaped interview of the victim by police investigators. He claims the videotape included prior inconsistent statements by the victim that could have been used to impeach her trial testimony.

The trial transcript shows that, after the victim testified, defense counsel asked the court for permission to play the videotape, explaining that the victim's trial testimony "may have deviated markedly" from her videotaped statements. Counsel did not elaborate or identify any specific prior inconsistent statements by the victim that were allegedly in the videotape. After the trial court denied the request to play the videotape, counsel did not proffer the excluded portions of the videotape.

As this Court has previously held,

[w]here the error alleged is that certain evidence has been wrongfully excluded, the rule is well settled that there must have been a proffer or offer of a...