Allen v. State

754 S.E.2d 795, 325 Ga. App. 752, 2014 Fulton County D. Rep. 312, 2014 WL 594332, 2014 Ga. App. LEXIS 67
CourtCourt of Appeals of Georgia
DecidedFebruary 18, 2014
DocketA13A1969
StatusPublished
Cited by1 cases

This text of 754 S.E.2d 795 (Allen v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. State, 754 S.E.2d 795, 325 Ga. App. 752, 2014 Fulton County D. Rep. 312, 2014 WL 594332, 2014 Ga. App. LEXIS 67 (Ga. Ct. App. 2014).

Opinion

Boggs, Judge.

A jury found Xavier Allen guilty on one count of theft by shoplifting for taking items of clothing from a department store.1 Following the denial of his amended motion for new trial, Allen appeals, asserting that the evidence was insufficient, that the trial court erred in failing to give his requested instruction on mere presence, and erred in failing to exercise its discretion in sentencing him. Having reviewed these claims, we discern no error and affirm.

Construed to support the verdict, the evidence reveals that a loss prevention officer with the department store, through her camera monitoring station, observed a man walking around the men’s clothing department “gathering clothes and kind of rolling them together and stacking them together” and then putting them inside a large store bag. She explained that the man “went to the floor with several items which is indicative usually of what shoplifters do. They go back [753]*753to the row and they go to the floor and they put several items in a bag or in a purse or in their own clothing.” The loss prevention officer called a deputy with mall security when she observed the man walking toward the store exit without paying for the items.

When the deputy arrived, he saw Allen “go out the door and . . . towards a vehicle.” He explained that the loss prevention officer gave him a description of the clothing of the “unknown black male,” but that he “knew exactly what individual she was talking about” because there were only a few people in the store that morning. By the time the deputy reached the door, Allen “was already standing between two vehicles as though he was trying to get into the car. At that point [the deputy] told him, ‘Stop, I need to talk to you.’ ’’Allen “then walked away from the vehicle and started toward . .. the wood line which is the outskirts of the main road that goes around the . . . [m]all.” The deputy explained that Allen had a “pretty good lead” on him.

An off-duty sergeant with the sheriff’s office was in the mall parking lot with his son when he observed the deputy “chasing a gentleman out of the mall at [the department store]. The guy runs right up to my truck. So I got out and said, ‘Sheriff’s Office, get on the ground.’ ” Allen complied and was placed in handcuffs. He was carrying a hag from the department store that contained clothing valued at $523.98 but no store receipt. The store surveillance video was played for the jury.

1. Allen argues that the evidence is insufficient because “[t]here was no direct testimony from any employee of [the department store] which identified [him] as the individual depicted in the video.” He argues further that there was no business record to show that the items had not been purchased, and the fact that the items were found in a bag near him does not establish that he shoplifted.

When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

[754]*754(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

The evidence showed: a person was observed on the store video monitoring system putting several items in a bag; the person then walked out of the store without paying for the items; when told to “stop” the person, identified as Allen, fled toward a wood line; and when apprehended he had in his possession a store bag containing several items from the store with price tags attached and no receipt. This evidence is sufficient to sustain Allen’s conviction for shoplifting. See Agony v. State, 226 Ga. App. 330, 331-332 (2) (486 SE2d 625) (1997) (flight is circumstantial evidence of consciousness of guilt; unexplained recent possession of stolen goods supports inference that accused committed theft); see also Ekanger v. State, 279 Ga. App. 421, 422-423 (631 SE2d 459) (2006) (evidence overwhelming where shoplifting witnessed in person and on video camera and video played for jury).

2. Allen contends that the court erred in failing to give his requested instruction on mere presence, because it was his sole defense. But “ ‘mere presence’ is not recognized as a separate and discrete defense to a criminal charge. [Cit.]” Reyes v. State, 322 Ga. App. 496, 498 (2) (745 SE2d 738) (2013). Rather,

[t]he rule that mere presence at the scene of a crime is insufficient to convict is actually a corollary to the requirement that the State prove each element of the offense charged. In the present case, the trial court correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence.

(Citations and punctuation omitted.) Jackson v. State, 281 Ga. 705, 707 (5) (642 SE2d 656) (2007). Moreover, “[a] trial court need not give a charge that is unsupported by the evidence.” Flowers v. State, 291 Ga. 122, 123 (2) (728 SE2d 196) (2012). The evidence shows that Allen was not merely present but was the sole participant in the crime. “[0]ne who is actively engaged in the crime charged is not entitled to a jury instruction on mere presence.” (Citation and punctuation omitted.) Huckabee v. State, 287 Ga. 728, 733 (4) (b) (699 SE2d 531) (2010); see Torres v. State, 298 Ga. App. 158, 159 (1) (679 SE2d 757) (2009) (defendant not entitled to charge on mere presence as sole defense where evidence showed connection to contraband other than mere presence in hotel room).

[755]*7553. Allen complains that the trial court failed to exercise its discretion in sentencing him pursuant to OCGA § 17-10-7 (a) and (c). The State introduced four prior felony drug convictions in aggravation of sentencing and for the imposition of recidivist sentencing pursuant to OCGA § 17-10-7 (a) and (c).

Following the verdict, when discussing Allen’s status as a recidivist, the trial court commented, “if he’s beyond or at the fourth one, I believe it’s a max sentence if I recall.” During the sentencing hearing, the following colloquy took place between the trial court, counsel for Allen, and counsel for the State:

The Court: Well, this is his fifth one?
[Allen’s counsel]: Fifth felony, Your Honor.
The Court: Uh-huh (affirmative).
[State’s counsel]: Yes, Your Honor. We’d be asking the Court to impose the maximum sentence in this case.

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Related

Barney v. the State
777 S.E.2d 490 (Court of Appeals of Georgia, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
754 S.E.2d 795, 325 Ga. App. 752, 2014 Fulton County D. Rep. 312, 2014 WL 594332, 2014 Ga. App. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-state-gactapp-2014.