Smarr v. State, A12A1171.

• Decision Date: 06 September 2012
• Docket Number: No. A12A1171.,A12A1171.
• Citation: 317 Ga.App. 584,732 S.E.2d 110
• Parties: SMARR v. The STATE.
• Court: Georgia Court of Appeals

317 Ga.App. 584

732 S.E.2d 110

SMARR

v.The STATE.

No. A12A1171.

Court of Appeals of Georgia.

Sept. 6, 2012.

Mark Robert Jeffrey, for Appellant.

James David McDade, Dist. Atty., Rachel Dawn Ackley, James Alan Dooley, Asst. Dist. Attys., for Appellee.

DILLARD, Judge.

Following a jury trial, Deonte Smarr was convicted on one count of burglary and one count of criminal attempt to commit burglary.He subsequently filed a motion for new trial, which the trial court denied. Smarr argues on appeal that the trial court erred in admitting similar-transaction evidence and in denying his motion for directed verdict as to the charge of attempted burglary, and further that his trial counsel rendered ineffective assistance for various reasons. Smarr also asserts that the trial court impermissibly increased his sentence after he began serving same. We agree that the trial court erred in increasing Smarr's sentence and therefore vacate that order and remand this case for resentencing; however, we affirm Smarr's convictions in all other respects.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict.¹ So construed, the evidence adduced at trial showed that on May 12, 2009, a deputy with the Douglas County Sheriff's Office was on routine patrol during the very early morning hours and observed three individuals dressed in all black and wearing ski masks attempting to load what appeared to be a large box onto the bed of a truck parked behind a convenience store located on Anneewakee Road (the “Anneewakee burglary”). As the deputy approached in his marked vehicle, the three individuals fled on foot and the driver of the truck led the deputy on a high-speed chase, ending only when the truck crashed into a ditch. The deputy immediately apprehended the truck's driver, Annie Freeman, and placed her under arrest; the three fleeing individuals, however, were not located at that time.

A subsequent investigation revealed that the surveillance cameras and security system at the convenience store had been disabled and that the perpetrators gained entry into the store by breaking through a glass door. They were attempting to load the store's safe onto the truck when the officer arrived and thwarted their plan. Law-enforcement officers located and seized three cellular telephones and several tools, including a sledge hammer/ax combination tool and a crowbar, from the interior of Freeman's truck following her arrest.

Freeman spent three months incarcerated, unwilling to provide investigators with any information about the Anneewakee burglary or her co-conspirators. As the investigation continued, however, the investigating officers intercepted and recorded numerous telephone calls between Freeman and an individual later identified as co-defendant Milton Davis, in which the two discussed details about the burglary and Freeman's frustration that she had been the only person apprehended. During their conversations, Freeman and Davis also frequently mentioned an individual they called “D,” but whom they also referred to on occasion as “Deonte.” Armed with this information, in conjunction with her independent research related to the cell phones recovered from Freeman's vehicle, the investigator identified Smarr as a suspect and testified that she was “very confident” that he was a participant in the Anneewakee burglary.

Freeman eventually tired of being the only suspect in jail and agreed to speak to investigators. In her statement, she confessed the details about the Anneewakee burglary and provided the identities of the other individuals involved, including Davis, Smarr, and their co-conspirator, Lindsey Mayes.

With respect to the Anneewakee burglary, Freeman reported that after identifying the target store, she and Davis drove in one vehicle and Smarr and Mayes in another, as they conducted late-night surveillance to ensure that the store was closed and free of potential witnesses. The foursome then met at a separate location and all got into Freeman's car. The crew brought with them a combination sledge hammer/ax tool and a crowbar. They returned to the store at approximately 1:00 a.m., where Davis got out and cut the wires to the store's security system. After ensuring the security system was disabled, the crew left and waited approximately 30 minutes in order to confirm that no one had been alerted to their presence. Upon returning to the store, Smarr and Mayes broke the glass in the door to gain entry and returned shortly thereafter with the store's safe on a hand truck. The deputy drove up as Davis, Smarr, and Mayes were attempting to load the safe onto Freeman's truck and everyone fled the scene, with only Freeman being apprehended.

In addition to detailing the Anneewakee burglary, Freeman confessed that she and her co-conspirators—including Smarr—had been involved in several other burglaries and attempted burglaries. She specifically detailed the attempted burglary of a Shell gas station located on Post Road, which occurred on May 9, the week prior to the Anneewakee burglary (the “attempted Shell burglary”).

With respect to the attempted Shell burglary, Freeman explained to investigators and testified at trial that, per their usual practice, Davis identified the Shell station as the desired target of their burglary. During the daylight hours on the day of the intended crime, she and Davis “scope[d]” out the store to determine the location of the surveillance cameras and security-alarm wires. Later that night, Freeman drove Davis to meet Smarr and Mayes, who had driven in a separate vehicle to again surveil the Shell station and confirm that there was no sign of unwanted activity. At approximately 1:00 a.m., the four individuals met in a different location and drove to the Shell station together in Freeman's truck. After determining that “everything was clear,” Smarr and Mayes disabled the surveillance cameras and cut the security-alarm wires. Having done so, the foursome left and waited approximately 30 minutes to ensure that their actions had not triggered an alert to the police or security company. They then returned to the Shell station, where Smarr and Mayes proceeded to the back of the building and, using a sledge hammer and an ax, broke through the wall of the building. Before the pair was able to enter the store, however, they heard an alarm that had been triggered on the interior of the building. Having communicated this fact via cell phone to Freeman and Davis, who had remained in Freeman's truck, the group agreed to meet in the woods adjoining the gas station. Once reunited in Freeman's truck, the foursome circled the block and noticed that law-enforcement vehicles had arrived on the scene. They thereafter left the area and did not return.

In addition to Freeman's testimony, the jury heard from Mayes. Mayes discussed how he, Smarr, Freeman, and Davis committed the Anneewakee burglary and, with the exception of stating that he and Smarr (as opposed to Davis) disabled the security cameras and alarm, his testimony was entirely consistent with Freeman's. Likewise, his account of the attempted Shell burglary essentially mirrored that of Freeman's, in that he and Smarr disabled the security cameras and alarm and then, after waiting for a period of time, broke a hole in the wall with a sledge hammer prior to hearing an internal alarm that caused the foursome to flee the scene.

The manager of the Shell station also testified and explained that on the night in question, she received a call from the security company alerting her that the store's alarm had been triggered. Upon her arrival at the store, she discovered that the external camera and security system had been damaged, and that a hole had been made in the concrete wall in the back of the building.

Finally, the jury was presented with similar-transaction evidence involving Smarr, which consisted of two other convenience-store burglaries—one in Clayton County and one in Haralson County—that he participated in with Freeman and Davis. Smarr was caught and arrested at the scene of the Clayton County burglary, and he confessed to participating in the Haralson County crime.

The jury ultimately convicted Smarr of the Anneewakee Road burglary and of criminal attempt to commit burglary of the Shell station. He thereafter moved for a new trial, which the trial court denied. This appeal follows.

1. Smarr argues that the trial court erred in admitting the similar-transaction evidence because the crimes were not sufficiently similar. We disagree.

When considering the admissibility of similar-transaction evidence, the proper focus is “on the similarities, not the differences, between the separate crime and the crime in question.” ² And here, the similar-transactionevidence offered by the State is strikingly similar to the crimes at issue in the case sub judice.

The Clayton County burglary occurred in December 2008 and involved Curly's outlet store. Freeman testified that she, Smarr, Davis, and another individual went to the target location during the early morning hours, where Davis cut the wires to disable the store's security equipment and then returned to her truck. She and Davis proceeded to wait in the truck while Smarr used a sledge hammer/ax combination tool to break a hole in the wall, through which Smarr and the fourth individual could enter the store to retrieve the store's safe, lottery tickets, and cigarettes. At some point, however, a police car pulled up behind the store and, although Freeman and Davis drove from the scene undetected, Smarr and his co-conspirator were arrested on the spot. Smarr had in his possession the sledge hammer/ax combination tool.

The Haralson County crime occurred in April 2009 and involved a different convenience store. As in the other burglaries, Freeman and Davis drove independently of Smarr and a fourth individual and then met at a nearby location, where all four got into...