Smallwood v. State
| Decision Date | 11 February 2009 |
| Docket Number | No. A08A2314.,A08A2314. |
| Citation | 296 Ga. App. 16,673 S.E.2d 537 |
| Parties | SMALLWOOD v. The STATE. |
| Court | Georgia Court of Appeals |
Glynn R. Stepp, Alan Mullinax, for appellant.
Daniel J. Porter, Dist. Atty., Jimmie E. Baggett, Jr., Asst. Dist. Atty., for appellee.
Following a jury trial, David Harold Smallwood was convicted of burglary and possession of a firearm by a convicted felon. The trial court sentenced Smallwood to 15 years, with 12 to be served in confinement. On appeal from the denial of his motion for a new trial, Smallwood contends (1) that the evidence was insufficient to support his convictions; (2) that the trial court incorrectly charged the jury on impeachment and prior consistent statements; and (3) that he received ineffective assistance of counsel. We affirm.
Viewed in the light most favorable to the jury's verdict, the evidence shows that on January 26, 2005, Billy Sharpton, a Lawrenceville police officer, discovered that a home he owns with his brother on Chandler Road in Gwinnett County had been burglarized and some guns had been taken. On January 30, Sharpton returned to check on the home. Before leaving, he closed all the interior doors and cabinets and locked all the exterior windows and doors. When Sharpton returned to the home the next morning, he noticed a black Chevrolet pickup truck sitting along the edge of the yard, and observed two men, later identified as Smallwood and his brother, Timmy, coming out of the house. Sharpton ordered the men to the ground and called Lawrenceville police on his cell phone.1 Officers from the City of Lawrenceville and Gwinnett County arrived on the scene and arrested the two men. Officers recovered two bags of hypodermic needles from David Smallwood's pocket. Sharpton testified that his brother used hypodermic needles for his diabetes medication; that he kept some needles in the refrigerator of the home; that the needles were missing; and that the ones recovered from David's pocket matched those that had been in the refrigerator. Sharpton also identified several items found in the truck that had been taken from the home, including a toolbox and a revolver. When he entered the home, Sharpton observed that the kitchen cabinets were open; that some pocket knives and a gun were lying on the kitchen table; that a duffle bag in the garage had been cut open with a knife and a gun removed; that two exterior doors were open; and that a window was unlocked and the screen was loose. Sharpton testified that the home had been broken into several times; that it was not—and had never been—a rental; and that he did not have a "for rent" sign in the yard.
Gwinnett County police officer Jonathan Golliher testified that he responded to the scene and observed a black Chevrolet Silverado pickup truck. He recovered a pistol from the cab of the truck and then went inside the house to investigate. Once inside, Golliher observed open drawers and cabinets throughout the home and several knives, a gun, and a box of ammunition lying on a chair near the back door. Golliher testified that he was aware the home had been broken into previously and that he had been told to check on the property. He explained that after Timmy and David were arrested and placed in a City of Lawrenceville patrol car, their conversation was recorded on the car's video equipment. A police officer with the City of Lawrenceville gave Golliher the videotape and he transported it to Gwinnett County police headquarters, where he turned it over to Detective Gary Miles.
Detective Miles testified that he executed a search warrant at David Smallwood's residence —also his mother's apartment—and recovered several items from the mother's bedroom, including four guns, a radio, and a Polaroid camera, all belonging to Sharpton. Smallwood's mother, Linda Smallwood, told Miles she had no idea the items were in her room. Miles also investigated a reported burglary where the victim, Kelly Joe Lunsford, identified Timmy's truck as the one he had observed leaving his property. When Miles executed a search warrant at Timmy Smallwood's residence, he recovered a stolen motorcycle and several items taken from Lunsford. Miles acknowledged receiving the videotape from Golliher. After the mostly inaudible tape was played for the jury, Miles confirmed that it was in the same condition as he received it from Golliher.
At trial, Timmy Smallwood testified on behalf of the state. He denied entering Sharpton's house and testified that David had suggested they look at the house to see if it was for rent since Linda Smallwood needed a new place to live. He testified that the truck and toolbox were both his but that the four guns recovered from his mother's bedroom were not. Timmy also testified that he found the guns in his mother's carport; that he carried them to her bedroom; and that David saw the guns before he took them upstairs. Timmy acknowledged lying to police that a green truck "with some Mexicans" had just left Sharpton's property when he and David arrived to inquire about renting it and stated that he did not carry syringes in his truck for his mother's medication.
Linda Smallwood testified that David had been living with her for two months at the time of the burglary. She testified that when she went into the kitchen the morning of January 31, she saw Timmy carrying a basket of guns, but she did not realize that Timmy had put the basket in her closet. She also testified that she has diabetes; that she uses syringes; that she left some syringes in Timmy's truck; and that the syringes found in David's pocket belonged to her.
At trial, David Smallwood denied committing the burglary and testified that he had no knowledge of the guns found in his mother's bedroom. He testified that it was Timmy's idea to look at the house for their mother to rent and that they had just climbed the steps of the back porch to see if the owner was home when Sharpton appeared in the driveway.
1. Smallwood claims there was insufficient evidence to support his convictions. We disagree.
(a) "A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another."2 Smallwood contends that the evidence was insufficient to support his burglary conviction because Sharpton's testimony at trial that he saw Smallwood exit his house was inconsistent with his statement at the scene and conflicted with Smallwood's testimony that he never entered the house. At the scene, Sharpton prepared a written statement, which read as follows: When questioned at trial about his statement, Sharpton emphasized that he saw David and Timmy come out the back door, but that he waited for them to come around the rear of the house before he ordered them to get down. He testified that he told several officers that the men came out of the back of the house and that he wrote down a brief description of what happened, which "may or may not have [had] all the minute details." Detective Miles testified that Sharpton told him that he observed David and Timmy exit the back of the house.
Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve. 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. The testimony of a single witness is generally sufficient to establish a fact. 3
Pretermitting whether Sharpton's written statement contradicted his trial testimony, the jury was authorized to believe Sharpton and Detective Miles and reject Smallwood's account.
(b) OCGA § 16-11-131(b) provides that "[a]ny person ... who has been convicted of a felony ... and who ... possesses ... any firearm commits a felony." Constructive possession is sufficient to show violation of the statute, and it may be proved by circumstantial evidence.4 Smallwood claims there was no direct evidence linking him to the basket of guns found in his mother's bedroom, and points out that he was not present when the guns were discovered.
Because the evidence viewed in the light most favorable to the verdict shows [Smallwood] committed the burglary in which the guns were stolen, it follows that [he] took possession of the guns during the burglary. ... Just as the circumstantial evidence in this case was sufficient to support the verdict of guilty as to the charge of burglary, it is also sufficient to support the verdict of guilty on those charges of possession of a firearm by a convicted felon in which no direct evidence of possession was presented.5
It is immaterial that the guns were found in Linda's bedroom and that Smallwood was not present when the guns were found. The guns were found in Smallwood's residence and Timmy testified that Smallwood knew the guns were in the residence. Timmy also testified that he did not put the basket in the carport and that the guns did not belong to him or his mother.
2. Smallwood contends that the trial court incorrectly charged the jury on impeachment. We disagree.
The trial court charged the jury as follows: Smallwood does not challenge the admission of his prior convictions for purposes of impeachment, but claims that the trial court's charge was erroneous because the phrase "moral turpitude" was replaced in the statute by "dishonesty or making a false statement."6 Smallwood contends...
To continue reading
Request your trial
-
Downey v. State
...to be convicted as a party to the crimes. See White v. State, 312 Ga.App. 421, 427(2), 718 S.E.2d 335 (2011) ; Smallwood v. State, 296 Ga.App. 16, 25(4)(e), 673 S.E.2d 537 (2009), overruled on other grounds, Stephens v. State, 289 Ga. 758, 759, n. 2(1)(a), 716 S.E.2d 154 (2011) ; Copeland v......
-
Williams v. State
...See Pippen , 299 Ga. at 712 (2), 791 S.E.2d 795.20 See Beasley , 305 Ga. at 236 (3), 824 S.E.2d 311.21 Smallwood v. State , 296 Ga. App. 16, 20 (2), 673 S.E.2d 537 (2009) (punctuation and footnote omitted).22 See Beasley , 305 Ga. at 236 (3), 824 S.E.2d 311 ; Winters , 303 Ga. at 133-134 (I......
-
Hines v. State
...jury charge on knowledge. See Copeland v. State, 263 Ga.App. 776, 780(2), 589 S.E.2d 319 (2003). See also Smallwood v. State, 296 Ga.App. 16, 25(4)(e), 673 S.E.2d 537 (2009), abrogated on other grounds, Stephens v. State, 289 Ga. 758, 760(1)(a), n. 2, 716 S.E.2d 154 (2011). Accordingly, we ......
-
Smith v. the State.
...assistance of counsel will be affirmed on appeal unless clearly erroneous.” (Punctuation and footnote omitted.) Smallwood v. State, 296 Ga.App. 16, 21(4), 673 S.E.2d 537 (2009). It is well-settled that counsel bears “the primary responsibility for advising the defendant of his right to test......