Weaver v. State

• Decision Date: 20 February 1984
• Docket Number: No. 67398,67398
• Citation: 315 S.E.2d 467,169 Ga.App. 890
• Parties: WEAVER v. The STATE.
• Court: Georgia Court of Appeals

Page 467

315 S.E.2d 467

169 Ga.App. 890

WEAVER v. The STATE.

No. 67398.

Court of Appeals of Georgia.

Feb. 20, 1984.

Alan Z. Eisenstein, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joseph J. Drolet, Richard E. Hicks, Thomas Jones, Asst. Dist. Attys., for appellee.

SHULMAN, Presiding Judge.

Appellant was convicted of one count of theft by taking (a 1977 Cadillac DeVille), and one count of theft by receiving stolen property (a 1967 Mercury Cougar). We herein grant the amended motion made by appellant's counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, and turn now to review the allegations of trial error asserted by appellant.

1. Appellant sought severance of the two counts of the indictment. "Two or more offenses may be tried together if they: '(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.' Dingler v. State, 233 Ga. 462, 463, 211 S.E.2d 752 (1975) (citing ABA Standards which we adopted in that case).

"Where two or more offenses are joined only because they are of the same or similar character, the trial court, upon motion of the defendant, must order separate trials for each of the offenses. Dingler, supra. But when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, '... the court in the interest of justice may order that one or more of such charges be tried separately.' [OCGA § 16-1-7 (Code Ann. § 26-506)]." Gober v. State, 247 Ga. 652(1), 278 S.E.2d 386. The state presented evidence showing that the victim of the theft by taking (the Cadillac owner) offered appellant and a companion a ride to a service station since the car in which they had been riding (the Cougar) had run out of gas. When the Cadillac driver momentarily exited his car at the service station in order to get directions, appellant and his companion drove off in the car. Sometime later that day, the victim returned to the site of the Cougar where he had first encountered appellant, and saw the two erstwhile passengers putting gasoline in the Cougar. The owner of the Cougar testified that her locked car had been stolen from a shopping mall parking lot one week prior to the incident involving the Cadillac. "In our opinion, [both] offenses were part of the same conduct within the meaning of that term as used in [OCGA § 16-1-7 (Code Ann. § 26-506)]. The evidence was not of such complexity as to hinder the jury from being able to distinguish the evidence and apply the law of the case intelligently to each alleged offense ... The trial court did not abuse [its] discretion in denying appellant's motion to sever ..." Gober, supra.

2. The trial court also admitted evidence of two similar transactions involving thefts of automobiles which occurred when the driver of the car left the keys in the ignition while briefly leaving the car to enter a store. Both cars were recovered from appellant's possession. The admission of the evidence was preceded by a cautionary instruction from the trial court. Appellant argues that proof of the two other crimes did not tend to establish that he had committed the crime for which he was being tried and, therefore, the admission of the evidence impermissibly placed his character into evidence.

"As a general rule, evidence of criminal acts committed by a defendant not included in the indictment are inadmissible because it tends to impermissibly put the defendant's character in issue. See [OCGA § 24-2-2 (Code Ann. § 38-202)] ... Exceptions to the rule ... developed over the years allowing the evidence of other crimes for the 'limited' purpose of showing identity, malice, intent, motive, plan, scheme, course of conduct, common design, bent of mind, modus operandi and the like. [Cits.] ... [T]he Supreme Court [has] established two conditions which must be satisfied before evidence of other crimes could become admissible: 'First, there must be evidence that the defendant was in fact the perpetrator of the independent crime. Second, there must be sufficient similarity or connection between the independent crime and the offense charged, that proof of the former tends to prove the latter.' " Millwood v. State, 164 Ga.App. 699(1), 296 S.E.2d 239. Having taken these principles and applied them to the facts of the case at bar, we conclude that the evidence was admissible to show modus operandi, course of conduct, and bent of mind.

3. During direct examination, a witness for the state mentioned that appellant had informed him that he, appellant, was on probation. Appellant's motion for mistrial, which followed curative instructions, was denied, and he now brings the issue before this court.

"The grant of or refusal to grant a motion for a mistrial lies within the sound discretion of the trial court, and the exercise of this discretion will not be disturbed unless the grant of a mistrial is essential to preserve the right to a fair trial. [Cits.]" Kilgore v. State, 251 Ga. 291(2b), 305 S.E.2d 82. Since there had previously been elicited testimony that appellant had pled guilty to a crime involving one of the similar transactions and no objection had been voiced with regard to that testimony, the trial court did not abuse its discretion in denying the motion for mistrial. Id.

4. "A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen ..." OCGA § 16-8-7(a) (Code Ann. § 26-1806). Appellant argues that there was insufficient evidence of his knowledge of the stolen nature of the Mercury Cougar and that, therefore, the trial court erred in failing to direct a verdict of acquittal on that count of the indictment.

Guilty knowledge is an essential element of theft by receiving stolen property (Ingram v. State, 160 Ga.App. 300(3), 287 S.E.2d 304), and possession alone is not sufficient to show guilty knowledge. Id., Division 2. However, the guilty knowledge may be inferred from circumstances which would excite suspicion in the mind of an ordinarily prudent person. Watts v. State, 157 Ga.App. 214, 276 S.E.2d 884. Appellant's accomplice testified that appellant was driving the car without a key; the car's owner stated that the car was returned to her with the dashboard missing and wires exposed; and appellant fled from the car to avoid arrest. The victim's testimony corroborated that of the accomplice (See OCGA § 24-4-8) (Code Ann. § 38-121)) and authorized the jury to infer guilty knowledge on the part...