Sutton v. State

• Decision Date: 28 September 2016
• Docket Number: A16A1176
• Citation: 791 S.E.2d 618,338 Ga.App. 724
• Parties: Sutton v. The State
• Court: Georgia Court of Appeals

338 Ga.App. 724

791 S.E.2d 618

Sutton

v.The State

A16A1176

Court of Appeals of Georgia.

September 28, 2016

Robert Lawrence Persse, Statesboro, Russell Robert Jones, for Appellant.

Samuel H. Altman, Jessica Black Wilson, for Appellee.

DILLARD

, Judge.

Timothy Sutton appeals his conviction for possession of tools for the commission of a crime, arguing that the evidence was insufficient to support his conviction, the trial court erred in failing to instruct the jury sua sponte on the elements of burglary, and his trial counsel was ineffective for failing to request such an instruction. For the reasons set forth infra , we affirm.

Viewed in the light most favorable to the jury's verdict,¹ the evidence shows that on the evening of September 24, 2012, a deputy sheriff with the Candler County Sheriff's Office was on patrol, and at some point during his shift, he parked in a “dark area” to monitor the intersection of Georgia Highways 57 and 46. Around 10:30 p.m., a vehicle approaching the intersection “caught [the officer's] attention” because, after stopping at the four-way stop, the car—which was “traveling on [h]ighway 46 coming from Metter, [Georgia]”—made “an extremely slow left turn” that was “so slow that it was very unusual.” Based on his observations, the officer believed that there was a good chance that the vehicle's driver was impaired, and consequently, he began following the car. When the vehicle turned onto a residential street, the officer observed the driver turn into a driveway, back out, and drive back in the direction from which he came. The officer then observed the driver turn into a second driveway, back out, and again drive back toward the highway.

After the vehicle returned to Highway 57, the driver ran a stop sign, which prompted the officer to initiate a traffic stop. When the officer approached the vehicle, Sutton, who was driving the car, stated that he did not have a driver's license. Then, at some point during the traffic stop, the officer noticed that socks were pulled over the outsides of Sutton's shoes, which heightened the officer's suspicions. Indeed, based on his training and experience working on burglary cases, the officer knew that “people who commit burglaries will wear socks over their hands or feet to conceal their fingerprints ... or footprints....” Next, the officer looked into the backseat area of the vehicle, where he observed a pry bar, saws, a grinder, a sledgehammer, work-style gloves, and a hat. The officer then inquired as to what Sutton was doing in the area, and he responded that he was “riding the area looking for some property that a relative owned.” Ultimately, the officer arrested Sutton for driving without a license and transported him to jail.

During the transport, the officer heard “thumping around in the cage area of [his] vehicle,” and upon arriving at the jail, the officer discovered that Sutton had removed his shoes and the socks covering them, even though he was handcuffed, and left them in the floorboard. The officer found this behavior “very unusual” because no other arrestee had ever removed his or her shoes during a transport in his 20 years of experience in law enforcement. At this point, based on everything the officer had witnessed, he arrested Sutton for possession of tools for the commission of a crime.

Later, during a custodial interview with the officer, Sutton explained that, on the night in question, he had traveled to Metter, Georgia, to eat at a fast-food restaurant, after which he planned to return to his father's residence in Excelsior, Georgia (which was on the opposite side of the county from where the traffic stop occurred near Aline, Georgia). Nevertheless, Sutton explained that he “mistakenly” turned toward Aline, where he stopped at a gas station to pour power-steering fluid into his vehicle just prior to the traffic stop. According to Sutton, he then planned to drive toward Excelsior, but when he saw the patrol car, he turned onto a nearby residential street because he was driving without a license. And as to his behavior of turning into and backing out of private driveways, Sutton told the officer that he did so in hopes that, if he were stopped by police, he could “save on the tow bill by being in a residence.”

Ultimately, Sutton was charged, via indictment, with one count of possession of tools for the commission of a crime. And following a jury trial, he was convicted of the charged offense. Sutton then filed a motion for a new trial, but waived a formal hearing on the motion because it was “based almost purely upon the law” and did not require the presentation of any additional evidence. After considering the briefs submitted by the parties, the trial court denied Sutton's motion for a new trial. This appeal follows.

1. Sutton first argues that the evidence was insufficient to support his conviction for possession of tools for the commission of a crime. We disagree.

At the outset, we note that when a criminal conviction is appealed, the evidence must be viewed “in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.”² And, of course, in evaluating the sufficiency of the evidence, we do not “weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.”³ Thus, we will uphold a jury's verdict so long as there is “some competent evidence, even though contradicted, to support each fact necessary to make out the State's case.”⁴ Bearing these guiding principles in mind, we turn now to Sutton's specific challenge to the sufficiency of the evidence to support his conviction.

Under OCGA § 16–7–20 (a)

, “[a] person commits the offense of possession of tools for the commission of [a] crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.” And here, the indictment charged Sutton

with the offense of POSSESSION OF TOOLS FOR THE COMMISSION OF [A] CRIME (O.C.G.A. [§] 16–7–20

) for that the said accused ... on September 24, 2012, in [Candler County,] did then and there unlawfully have in his possession tools, to wit: pry bars, saws, grinder, sledge hammer, along with gloves and dark knit hat, which [are] commonly used in the commission of burglary, with the intent to use said items in the commission of a crime, contrary to the laws of the state of Georgia, the good order, peace and dignity thereof.

On appeal, Sutton claims that while the evidence presented, including his two previous convictions for burglary-related crimes, detailed infra , “arguably rais[es] a suspicion of guilt,” it was insufficient to support his conviction. Specifically, Sutton contends that his conviction for possession of tools for the commission of a crime was unsupported because (1) although pictures of the tools in his possession were shown to the jury, the tools themselves were not submitted as evidence such that the jury could evaluate whether they showed signs of recent use and whether they had actually been used in the commission of a crime; and (2) the State presented no evidence that he committed a burglary prior to his encounter with the patrol officer.⁵

Sutton is indeed correct that, in the majority of cases in which this Court has upheld convictions for possession of tools for the commission of a crime, there was at least some evidence that the tools were actually used in some specific crime or attempted crime.⁶ But although such evidence may support a conviction for possession of tools for the commission of a crime, Sutton has provided us with no legal authority—and there is none that we can find—suggesting that evidence of recent use of the tools in a particular crime or attempted crime is necessary to support a conviction under OCGA § 16–7–20 (a)

. This is because the plain language of the statute itself requires only that the defendant possess the relevant tools with the intent to use them in the commission of a crime, not that the tools must have already been used to commit a particular crime.⁷

And here, there was evidence that the arresting officer observed Sutton driving in a suspicious manner when he made an unusually slow turn at a four-way stop and when he pulled into and backed out of driveways on a residential street before driving back in the same direction from which he came. In fact, the officer was so concerned by Sutton's odd behavior that he initially assumed Sutton was an impaired driver. Further, in addition to the numerous tools found in the backseat of Sutton's vehicle, he had socks pulled over his shoes, which the officer testified is sometimes done during burglaries to avoid leaving footprints. Sutton also removed those shoes and socks while still in handcuffs, which the officer had never seen an arrestee do before. In addition to this odd and suspicious behavior, Sutton lied to the patrol officer about why he was driving around the Aline area. Indeed, during the traffic stop, Sutton claimed that he was “riding the area looking for some property that a relative owned.” But later, in his official statement to law enforcement, he contended that he inadvertently arrived in Aline after “mistakenly” taking a wrong turn away from his intended destination, which was on the opposite side of the county.

Additionally, the jury heard evidence that Sutton had been involved in two prior burglaries. Specifically, in November 2003, the same arresting officer in this case investigated a burglary in which numerous items, including lottery tickets, a firearm, and a bank bag, were stolen from a gas station that was across the street from the one where Sutton stopped just prior the traffic stop. Based on the investigation that ensued, Sutton was identified as a person of interest, and a search warrant was issued for his home. During that...