Ashley v. State

523 S.E.2d 901, 240 Ga. App. 502, 99 Fulton County D. Rep. 3896, 1999 Ga. App. LEXIS 1392
CourtCourt of Appeals of Georgia
DecidedOctober 21, 1999
DocketA99A2003
StatusPublished
Cited by2 cases

This text of 523 S.E.2d 901 (Ashley 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
Ashley v. State, 523 S.E.2d 901, 240 Ga. App. 502, 99 Fulton County D. Rep. 3896, 1999 Ga. App. LEXIS 1392 (Ga. Ct. App. 1999).

Opinion

Eldridge, Judge.

Appellant Terry Melvin Ashley challenges the denial of his motion for new trial, which followed his July 1997 conviction for burglary. We affirm.

“On appeal from a criminal conviction, the defendant is no longer presumed innocent, and the evidence is viewed in the light most favorable to the verdict. [Cit.]” Johnson v. State, 223 Ga. App. 668, 669 (1) (478 SE2d 404) (1996). The evidence presented at trial showed that, on April 26, 1997, Doris Hope operated a personal care home at 1728 Wrightsboro Road, Augusta, Richmond County. Hope’s grandson, Dennis Futch, and his fiancée, Kimberly Cook, were staying overnight with Hope and sleeping on a sofa bed in the living room. The light in a nearby bathroom was kept on all night in order to assist the elderly residents.

At approximately 4:20 a.m., Cook’s baby began to cry, and Cook went to the kitchen for a bottle. When the baby continued crying, Cook began looking for a clean diaper. Cook noticed something that resembled the diaper bag under the bed, but when she touched it, she realized it was a person. As she cried out, a man suddenly “shot out” from under the opposite side of the bed. Futch woke up, and they both saw the man run into the bathroom and shut the door. When Futch pushed on the door, the intruder “dove” out the bathroom window. Futch ran out the back door and gave chase, but lost sight of the intruder when the intruder ran around the corner.

At trial, both Futch and Cook testified that the intruder wore a white or light-colored shirt and pants, but they did not see his face. Cook also testified that, after the intruder had left, she noticed that someone had opened a bag next to the bed containing some of the family’s belongings; she stated that the bag had been closed when they went to bed. According to Cook, it appeared that someone had “fumbled through” the bag. Futch testified that he later discovered that someone had removed the screen from the bathroom window and had placed a garbage can under the window.

Within minutes, police officers responded to a distress call from 1720 Wrightsboro Road, just down the street from Hope’s home. The resident reported to police that someone was “banging around” on her back door and/or attempting to enter the residence. When police arrived, they found Ashley sitting on the back porch, “extremely intoxicated.” Ashley had on white pants and a white sweatshirt! The police photographed Ashley at the scene, and the State introduced the photographs at trial. The police searched Ashley for weapons and found a knife, which was admitted as evidence at trial.

Soon thereafter, Futch arrived at the scene “screaming and yell[503]*503ing” that “[t]hat’s the guy that broke into my house.” Police arrested Ashley and charged him with burglary.

Ashley testified at trial and denied any involvement with the burglary. He asserted two defenses, as follows: (a) he had been drinking at a nearby, unidentified club at the time of the burglary and was walking home when the police stopped him, arrested him, and took him to 1720 Wrightsboro Road; and (b) at the time of the crime, he was physically unable to commit the crime, as he was extremely intoxicated and could barely walk, “much less climb anywhere.” He also claimed that he, himself, had just been robbed of his shoes and $270. However, on cross-examination, he stated that he had “cut through” the building at 1720 Wrightsboro Road and “may have stumbled or fell” onto the back porch.

Following Ashley’s conviction, appellate counsel filed a motion for new trial based upon general grounds. New counsel was appointed on October 8, 1998, and filed an amended motion for new trial. On December 30, 1998, the trial court denied the motion on all grounds. Ashley appeals. Held:

1. In his first enumeration, Ashley contends that the evidence presented was purely circumstantial and did not support his burglary conviction.1 On appeal, this Court reviews only the sufficiency of the evidence; the credibility and weight to be accorded the evidence are tasks for the jury. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Richardson v. State, 233 Ga. App. 890, 891 (505 SE2d 57) (1998).

Even if the evidence presented was, as asserted, entirely circumstantial, we note that

[t]o support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Under this rule, the [Sjtate is not required to remove every possibility of innocence of the crime charged.

(Citations omitted.) Haney v. State, 234 Ga. App. 214, 216 (1) (507 SE2d 18) (1998). See also Ware v. State, 198 Ga. App. 24, 26 (1) (400 SE2d 384) (1990). After reviewing the evidence in the record, this Court finds that the evidence was sufficient for a rational trier of fact to find Ashley guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, supra.

2. In his second enumeration of error, Ashley asserts that the [504]*504trial court committed reversible error in failing to give a jury instruction on alibi,2 even absent a request.3 It is undisputed that no such instruction was requested. See also Division 3, infra.

This issue is controlled by the Supreme Court of Georgia’s ruling in Rivers v. State, 250 Ga. 288, 300 (8) (298 SE2d 10) (1982), which reads as follows:

since the true effect of an alibi defense is to traverse the [S]tate’s proof that the defendant committed the crime, the charge that the burden is on the [S]tate to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt. [Therefore,] it is ordinarily not error to fail to charge specifically on alibi absent a request. ... [In this case, the] trial court did charge, completely and correctly, on the defendant’s presumption of innocence, on the [S] fate’s burden of proving beyond a reasonable doubt that the defendant committed the crimes at issue, and on credibility of witnesses. The [S]tate produced evidence sufficient to prove beyond a reasonable doubt that the defendant perpetrated these crimes; the defendant testified that he did not do so, and that he could not have done so because he was [walking home while heavily intoxicated after drinking at a club] at the time [the crime] occurred. The absence of a charge on alibi did not change the fact that no juror who believed the defendant’s testimony could find that the [S]tate had carried its burden of proof.

(Citations omitted.) See also OCGA § 5-5-24; Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981) (an affirmative defense “need not be specifically charged if the case as a whole is fairly presented to the jury. [Cit.]”); Hightower v. State, 224 Ga. App. 703, 704 (1) (481 SE2d 867) (1997); Green v. State, 219 Ga. App. 24 (464 SE2d 21) (1995).

Accordingly, there was no error.

[505]*505Decided October 21, 1999. Elizabeth C. Calhoun, for appellant.

3.

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Related

Burns v. State
555 S.E.2d 209 (Court of Appeals of Georgia, 2001)
Holland v. State
554 S.E.2d 303 (Court of Appeals of Georgia, 2001)

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Bluebook (online)
523 S.E.2d 901, 240 Ga. App. 502, 99 Fulton County D. Rep. 3896, 1999 Ga. App. LEXIS 1392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashley-v-state-gactapp-1999.