Tyner v. State
| Decision Date | 13 January 2012 |
| Docket Number | No. A11A1520.,A11A1520. |
| Parties | TYNER v. The STATE. |
| Court | Georgia Court of Appeals |
OPINION TEXT STARTS HERE
Maureen Mae McLeod, Dorian Murry, Union City, for appellant.
Peter J. Skandalakis, Dist. Atty., Timothy Michael Marlow, Asst. Dist. Atty. for appellee.
Following a jury trial, Gloria Ann Tyner was convicted of one count of felony theft by shoplifting. Tyner appeals her conviction and the denial of her motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred in allowing a witness to testify as to an ultimate issue of fact; admitting cumulative evidence; denying her request for a continuance to obtain new counsel; sentencing her as a recidivist, pursuant to OCGA § 17–10–7, based on her past shoplifting convictions; improperly expressing its opinion as to the evidence and her guilt; and denying her ineffective- assistance-of-counsel claims. For the reasons set forth infra, we affirm.
Viewed in the light most favorable to the jury's guilty verdict,1 the evidence shows that on June 5, 2010, a loss-prevention officer for a large department store in a shopping mall was monitoring the store's video-surveillance cameras when he observed Tyner approach a display containing designer handbags, examine one of the handbags, and then walk toward the exit. And while the officer found Tyner's behavior suspicious, no security guard was on duty that day, and therefore, Tyner was not questioned. A few minutes later, Tyner exited the store, and the officer saw her drive away.
On June 12, 2010, only one week after the first incident, the same loss-prevention officer was monitoring the store's video-surveillance cameras when he once again saw Tyner—whom he recognized because she was wearing the identical clothing she had worn a week earlier—approach the same display of designer handbags. After Tyner examined the display, the officer observed her concealing a handbag under one of the department store's shopping bags, which she was carrying. This time, a security guard was on duty, and the officer told the guard to stand near the exit to prevent Tyner from leaving. Tyner apparently noticed the security guard, and thus, instead of immediately exiting, she walked around the store's lingerie section for several minutes before attempting to conceal the handbag under a rack of clothes. She then proceeded toward the store's exit but was stopped by the security guard, searched, and escorted to the store's office to await the arrival of police. Thereafter, at the loss-prevention officer's direction, one of the store's assistant managers retrieved the bag that Tyner had concealed under the clothing rack, which contained a designer handbag and four wallets—the total value of which exceeded $1,000.
Tyner was thereafter indicted on two counts of felony theft by shoplifting, with Count 1 alleging that she stole a purse from the store on June 5, 2010, and Count 2 alleging that she stole a purse and wallets from the store on June 12, 2010. During trial, the loss-prevention officer testified regarding his observation of Tyner's actions on the subject dates, as well as the value of the stolen merchandise, and the police officer, who was dispatched to the store, testified regarding Tyner's arrest. At the trial's conclusion, the jury found Tyner not guilty on Count 1 but guilty on Count 2, and the trial court imposed a sentence of ten years to serve.
Thereafter, Tyner obtained new counsel and filed a motion for a new trial, alleging, inter alia, that her trial counsel provided ineffective assistance. And after conducting a hearing on the matter, during which Tyner and her trial counsel testified, the trial court denied Tyner's motion. This appeal follows.
1. Tyner challenges the sufficiency of the evidence supporting her felony shoplifting conviction, arguing that the State failed to prove that any merchandise was actually taken or concealed, given that no merchandise was found on her person, in her bag, or in her car. This contention is without merit.
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 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 Accordingly, the jury's verdict will be upheld “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case....” 4
Additionally, OCGA § 16–8–14(a)(1) provides, in relevant part, that
[a] person commits the offense of theft by shoplifting when he ..., with the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, ... [c]onceals or takes possession of the goods or merchandise of any store or retail establishment.5
And shoplifting is punished “as a misdemeanor if the value of merchandise taken is $300 or less[, but] [t]he offense is a felony if the value of merchandise taken is greater than $300.” 6
Here, the evidence showed that Tyner took a purse and four wallets from the department store's display and concealed the merchandise under a clothing rack after realizing that she was under surveillance and could not exit the store without being stopped and searched by the security guard. Tyner, nevertheless, contends that this evidence is insufficient because no merchandise was found on her person. However, “[w]hether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” 7 And under these circumstances, the evidence was sufficient to support the jury's finding that Tyner was guilty beyond a reasonable doubt of theft by shoplifting.8
2. In the same enumeration of error challenging the sufficiency of the evidence, Tyner contends that the trial court erred in (1) allowing the department store's loss-prevention officer to improperly narrate while the surveillance video was played for the jury and (2) admitting into evidence still photographs taken from the surveillance footage. We note that Tyner did not specifically enumerate either of these claims of error but instead has improperly used her brief to expand her enumerations of error.9 Nevertheless, Tyner's claims are wholly without merit.
In the trial of this matter, the State played the surveillance tapes that showed Tyner's actions in the department store on the two dates in question while the loss-prevention officer explained what he thought the tapes depicted during his surveillance. Tyner argues that this testimony constituted improper bolstering, but we disagree. Indeed, the officer's testimony “did not reflect his personal belief as to the veracity of the evidence, [and therefore,] it constitutes neither improper bolstering nor a statement of opinion upon an ultimate issue of fact for the jury.” 10 Moreover, it was up to the jury “to determine the weight to be given to the loss prevention officer's testimony once it was admitted.” 11 Accordingly, the trial court did not err in allowing the officer to testify regarding what was depicted on the surveillance videotape, as the “testimony offered no opinion but merely pointed out factual evidence which supported the contentions of the State, evidence already before the jury.” 12
Tyner also argues that still photographs taken from the surveillance video footage and shown to the jury during trial were cumulative and thus prejudicial. Again, we disagree. Generally, “[t]he admission of cumulative evidence is harmless.” 13 And here, Tyner failed to demonstrate how the admission of these photographs was prejudicial. Thus, her claim that the admission of this cumulative evidence constituted reversible error lacks merit.
3. Tyner also contends that the trial court erred in denying her request for a continuance to hire new counsel, which she did not make until the day of her trial. We disagree.
It is well settled that
[a] motion for continuance, even to employ new counsel, is addressed to the sound discretion of the trial court, and this Court will not interfere unless it is clearly shown that the court abused its discretion. The trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. Broad discretion must be granted trial courts on matters of continuances.14
And here, Tyner requested a continuance to obtain new counsel on the day of trial just before the beginning of jury selection, claiming that she was not satisfied with how her current hired counsel was handling her case. Nevertheless,
even where a defendant expressed lack of confidence in trial counsel's ability and disagreement with his advice and strategy, we have affirmed a trial court's denial of a last-minute request for a continuance to retain new counsel if it appears that the defendant negligently failed to employ new counsel promptly or if it appears he is using the tactic for delay.15
Given the foregoing, we simply cannot say that the trial court abused its discretion in denying Tyner's last-minute request for a continuance to hire new counsel.16
4. Tyner also contends that the trial court erred in sentencing her as a recidivist pursuant to OCGA § 17–10–7. This contention is likewise without merit.
Immediately after the jury found Tyner guilty of felony shoplifting, the trial court held a sentencing hearing, during which the State's prosecutor noted that Tyner had previous convictions of both felony and misdemeanor...
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