SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 25, 2012
In the Court of Appeals of Georgia A12A1458. BAILEY v. THE STATE.
BARNES, Presiding Judge.
Brian Bailey and his brother Emmanuel Bailey were jointly indicted on 26
felony counts, including aggravated assault, burglary, entering a car with the intent
to commit theft, firearms possession by a convicted felon, and other theft charges
related to a burglary and a string of automobile break-ins and thefts in November and
December 2009. Bailey’s brother pled guilty to the charges against him and testified
as a defense witness that he committed all of the crimes by himself except one, which
he committed with someone other than Bailey. A jury convicted Bailey of all charges
except the aggravated assault, and after merging some offenses with others, the trial
court sentenced him to an aggregate of 20 years, 12 to be served in custody. Bailey
appeals, arguing that the State’s circumstantial evidence was insufficient to authorize a rational trier of fact to find him guilty of the crimes for which he was convicted
because it did not eliminate the reasonable possibility that Bailey’s brother committed
the offenses alone or with another man.1 After reviewing the briefs and the record, we
affirm the trial court’s denial of Bailey’s motion for new trial.
On appeal, we view the evidence in the light most favorable to the verdict, and
Bailey no longer enjoys a presumption of innocence. Campbell v. State, 278 Ga. 839,
840 (1) (607 SE2d 565) (2005). This court determines only the sufficiency of the
evidence, not the credibility of the witnesses, which is determined by the trier of fact.
Matthiessen v. State, 277 Ga. App. 54 (625 SE2d 422) (2005); O’Bear v. State, 156
Ga. App. 100, 101 (1) (274 SE2d 54) (1980).
Under OCGA § 24-4-6, “[t]o warrant a conviction on circumstantial evidence,
the proved facts shall not only be consistent with the hypothesis of guilt, but shall
exclude every other reasonable hypothesis save that of the guilt of the accused.”
While mere suspicion is insufficient to support a conviction, “the proved facts need
exclude only reasonable hypotheses – not bare possibilities that the crimes could have
been committed by someone else.” Morris v. State, 202 Ga. App. 673, 674 (415 SE2d
1 Bailey does not argue that the evidence was insufficient to sustain his convictions for felony obstruction of a law enforcement officer and interference with government property for kicking out the back window of a patrol car.
2 485) (1992); Locklear v. State, 249 Ga. App. 104, 105 (1) (547 SE2d 764) (2001).
Unless the verdict is unsupportable as a matter of law, this court will not disturb the
jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis
save that of guilt. Morris v. State, 202 Ga. App. at 674.
The presentation of evidence during Bailey’s five-day trial was complex. The
State called 46 witnesses and introduced hundreds of exhibits, many of them
photographs of stolen items later found in residences connected to Bailey. That a
burglary and thefts occurred and that the police found stolen items are not issues on
appeal. At issue is whether the State presented sufficient evidence for the jury to
conclude that Bailey, with or without his brother, committed these offenses.
We commend both parties to this appeal for their detailed, comprehensive
briefs citing properly to the voluminous appellate record. The parties properly
supported the factual statements in their briefs by citations to the record, and likewise
supported their legal propositions by citations to applicable statutes and case law.
Considered in the light most favorable to the verdict, three victims testified that
they discovered crimes involving their vehicles on November 24, 2009. Personal
items had been stolen from the cars of two victims, and the third victim’s van had
been stolen. Two days later, on November 26, 2009, victims from three more
3 households awoke to find the contents of their vehicles in disarray with items
missing, and one victim’s work van was gone. Two days after that, five victims who
lived on the same street found that their vehicles had been entered with property
missing, and a sixth victim’s van was stolen. On December 1, 2009, four more
victims, all living on the same street, found that their vehicles had been entered and
property was missing, as did three additional victims on December 3, 2009. On
December 10, 2009, four victims from two houses close to each other discovered that
their vehicles had been entered and property was gone, and a fifth victim’s Buick
LeSabre was gone.
On December 11, 2009, a man came home mid-morning to find the stolen
LeSabre in his carport. Two men were in the car, which pulled out quickly and
clipped the victim’s leg as it left the premises. Before the victim entered his house to
find it ransacked and items missing, he called 911 to report the license plate number,
and the police found the car abandoned a few blocks away with the engine still warm.
A package in the LeSabre was addressed to Bailey’s sister at 2500 Martin Luther
King Boulevard (“MLK Boulevard”), and outside of 2500 MLK Boulevard, officers
found an empty package addressed to the LeSabre’s owner.
4 After obtaining and executing a search warrant, the police found the LeSabre
license plate inside the residence, along with property stolen from 12 different
victims. Bailey’s mother told police that she and her sons used the residence to store
things, and Bailey subsequently admitted to having been in the residence a day or two
before it was searched. Arrest warrants were issued for both Brian and Emmanuel
Bailey, and Emmanuel was arrested.2 In a recorded telephone call from Bailey to
Emmanuel in jail, Emmanuel warned Bailey that the police were looking for him.
Bailey asked Emmanuel about the location of a certain bag, which led the police to
obtain a backpack Emmanuel had left at his mother’s house. Inside the backpack were
several stolen items that were subsequently identified by victims of the November to
December 2009 crime spree.
The police attempted to locate Bailey at a house he had been renting at 2303
MLK Boulevard. Outside the residence they found a credit card belonging to one of
the victims. As with the house at 2500 MLK Boulevard, the house at 2303 MLK
Boulevard appeared to be a “stash house,” used to store items after they were stolen
and before they were sold. Inside the residence was mail addressed to 2502
2 To avoid confusion, Emmanuel Bailey will be referred to as simply “Emmanuel.”
5 Boulevard, which is the address some utility services used to identify the house
otherwise known as 2500 MLK Boulevard, as well as numerous stolen items later
identified by victims.
The State presented extensive fingerprint evidence. Bailey’s fingerprint was
found on a Cheez-It box found in the shrubbery of a house a few doors away from the
house where the LeSabre was stolen, and next to the box was a radio faceplate stolen
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SECOND DIVISION BARNES, P. J., ADAMS and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. (Court of Appeals Rule 4 (b) and Rule 37 (b), February 21, 2008) http://www.gaappeals.us/rules/
October 25, 2012
In the Court of Appeals of Georgia A12A1458. BAILEY v. THE STATE.
BARNES, Presiding Judge.
Brian Bailey and his brother Emmanuel Bailey were jointly indicted on 26
felony counts, including aggravated assault, burglary, entering a car with the intent
to commit theft, firearms possession by a convicted felon, and other theft charges
related to a burglary and a string of automobile break-ins and thefts in November and
December 2009. Bailey’s brother pled guilty to the charges against him and testified
as a defense witness that he committed all of the crimes by himself except one, which
he committed with someone other than Bailey. A jury convicted Bailey of all charges
except the aggravated assault, and after merging some offenses with others, the trial
court sentenced him to an aggregate of 20 years, 12 to be served in custody. Bailey
appeals, arguing that the State’s circumstantial evidence was insufficient to authorize a rational trier of fact to find him guilty of the crimes for which he was convicted
because it did not eliminate the reasonable possibility that Bailey’s brother committed
the offenses alone or with another man.1 After reviewing the briefs and the record, we
affirm the trial court’s denial of Bailey’s motion for new trial.
On appeal, we view the evidence in the light most favorable to the verdict, and
Bailey no longer enjoys a presumption of innocence. Campbell v. State, 278 Ga. 839,
840 (1) (607 SE2d 565) (2005). This court determines only the sufficiency of the
evidence, not the credibility of the witnesses, which is determined by the trier of fact.
Matthiessen v. State, 277 Ga. App. 54 (625 SE2d 422) (2005); O’Bear v. State, 156
Ga. App. 100, 101 (1) (274 SE2d 54) (1980).
Under OCGA § 24-4-6, “[t]o warrant a conviction on circumstantial evidence,
the proved facts shall not only be consistent with the hypothesis of guilt, but shall
exclude every other reasonable hypothesis save that of the guilt of the accused.”
While mere suspicion is insufficient to support a conviction, “the proved facts need
exclude only reasonable hypotheses – not bare possibilities that the crimes could have
been committed by someone else.” Morris v. State, 202 Ga. App. 673, 674 (415 SE2d
1 Bailey does not argue that the evidence was insufficient to sustain his convictions for felony obstruction of a law enforcement officer and interference with government property for kicking out the back window of a patrol car.
2 485) (1992); Locklear v. State, 249 Ga. App. 104, 105 (1) (547 SE2d 764) (2001).
Unless the verdict is unsupportable as a matter of law, this court will not disturb the
jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis
save that of guilt. Morris v. State, 202 Ga. App. at 674.
The presentation of evidence during Bailey’s five-day trial was complex. The
State called 46 witnesses and introduced hundreds of exhibits, many of them
photographs of stolen items later found in residences connected to Bailey. That a
burglary and thefts occurred and that the police found stolen items are not issues on
appeal. At issue is whether the State presented sufficient evidence for the jury to
conclude that Bailey, with or without his brother, committed these offenses.
We commend both parties to this appeal for their detailed, comprehensive
briefs citing properly to the voluminous appellate record. The parties properly
supported the factual statements in their briefs by citations to the record, and likewise
supported their legal propositions by citations to applicable statutes and case law.
Considered in the light most favorable to the verdict, three victims testified that
they discovered crimes involving their vehicles on November 24, 2009. Personal
items had been stolen from the cars of two victims, and the third victim’s van had
been stolen. Two days later, on November 26, 2009, victims from three more
3 households awoke to find the contents of their vehicles in disarray with items
missing, and one victim’s work van was gone. Two days after that, five victims who
lived on the same street found that their vehicles had been entered with property
missing, and a sixth victim’s van was stolen. On December 1, 2009, four more
victims, all living on the same street, found that their vehicles had been entered and
property was missing, as did three additional victims on December 3, 2009. On
December 10, 2009, four victims from two houses close to each other discovered that
their vehicles had been entered and property was gone, and a fifth victim’s Buick
LeSabre was gone.
On December 11, 2009, a man came home mid-morning to find the stolen
LeSabre in his carport. Two men were in the car, which pulled out quickly and
clipped the victim’s leg as it left the premises. Before the victim entered his house to
find it ransacked and items missing, he called 911 to report the license plate number,
and the police found the car abandoned a few blocks away with the engine still warm.
A package in the LeSabre was addressed to Bailey’s sister at 2500 Martin Luther
King Boulevard (“MLK Boulevard”), and outside of 2500 MLK Boulevard, officers
found an empty package addressed to the LeSabre’s owner.
4 After obtaining and executing a search warrant, the police found the LeSabre
license plate inside the residence, along with property stolen from 12 different
victims. Bailey’s mother told police that she and her sons used the residence to store
things, and Bailey subsequently admitted to having been in the residence a day or two
before it was searched. Arrest warrants were issued for both Brian and Emmanuel
Bailey, and Emmanuel was arrested.2 In a recorded telephone call from Bailey to
Emmanuel in jail, Emmanuel warned Bailey that the police were looking for him.
Bailey asked Emmanuel about the location of a certain bag, which led the police to
obtain a backpack Emmanuel had left at his mother’s house. Inside the backpack were
several stolen items that were subsequently identified by victims of the November to
December 2009 crime spree.
The police attempted to locate Bailey at a house he had been renting at 2303
MLK Boulevard. Outside the residence they found a credit card belonging to one of
the victims. As with the house at 2500 MLK Boulevard, the house at 2303 MLK
Boulevard appeared to be a “stash house,” used to store items after they were stolen
and before they were sold. Inside the residence was mail addressed to 2502
2 To avoid confusion, Emmanuel Bailey will be referred to as simply “Emmanuel.”
5 Boulevard, which is the address some utility services used to identify the house
otherwise known as 2500 MLK Boulevard, as well as numerous stolen items later
identified by victims.
The State presented extensive fingerprint evidence. Bailey’s fingerprint was
found on a Cheez-It box found in the shrubbery of a house a few doors away from the
house where the LeSabre was stolen, and next to the box was a radio faceplate stolen
from another car on the same street. Bailey left two fingerprints on the outside front
passenger window of the stolen LeSabre, and his brother left a print on the inside of
the passenger window. Finally, Bailey left fingerprints on a blue metal box stolen
from that house and recovered from 2500 MLK Boulevard.
The State also introduced similar transaction evidence that Bailey pled guilty
to stealing an automobile in February 2005, and again in January 2006.
Emmanuel Bailey testified for the defense that he pled guilty to the charges
against him and that Bailey neither assisted nor was present at any of the thefts.
Emmanuel testified he took the Cheez-It box from 2303 MLK Boulevard, where
Bailey had eaten from it, and left it in the bushes near one of the crime scenes, and
that the other man in the car at the burglary was a man named “Charles,” who was a
“crackhead [he met] in the street.” Emmanuel further testified he had sold most of the
6 stolen items to support his habit of smoking crack cocaine, but he left the items he did
not sell at either 2303 or 2500 MLK Boulevard. He said he drove the LeSabre from
the burglary to 2303, but when Bailey told him he was about to be evicted from there,
he drove to 2500 and left the stolen property he had in the car. On cross-examination,
the State impeached Emmanuel with evidence of three prior felony convictions, two
for receiving stolen property and one for entering an automobile with the intent to
commit theft.
Bailey argues that the circumstantial evidence against him was insufficient to
eliminate the reasonable possibility that his brother committed the burglary with
another man and all of the other offenses by himself. The existence of the evidence
against him, he contends, could be explained in a manner consistent with him being
not guilty. For example, his brother had access to both houses where stolen property
was found, Bailey left a fingerprint on the Cheez-It box before his brother took it
from their residence and dropped it at a crime scene, Bailey touched the blue box
stolen during the burglary after his brother left it at 2500 MLK Boulevard, and
Bailey’s fingerprints on the outside of the stolen LeSabre did not prove he stole it or
was ever inside the car.
7 In addition to Bailey’s fingerprints on the stolen car, on a cracker box near the
scene of the car theft, and on a stolen item found at 2500 MLK Boulevard, the
recorded telephone call between Bailey and his brother in jail was incriminating. The
State impeached Emmanuel Bailey’s testimony that Bailey had nothing to do with the
crimes by introducing evidence of his three prior felony convictions. As noted
previously, circumstantial evidence need not exclude every conceivable hypothesis
of a defendant’s innocence, only reasonable ones, Locklear v. State, 249 Ga. App. at
105, and whether Bailey’s alternative hypothesis was reasonable was a question for
the jury to decide. The evidence here was sufficient to authorize a rational jury to find
that the State had excluded every reasonable hypothesis other than Bailey’s guilt and
to find him guilty beyond a reasonable doubt of the crimes for which he was
convicted. See OCGA § 24-4-6; Jackson v. Virginia, 443 U.S. 307, 319 (99 SC 2781,
61 LE2d 560) (1979); Crouch v. State, 279 Ga. 879, 880 (1) (622 SE2d 818) (2005).
Judgment affirmed. Adams and McFadden, JJ., concur.