FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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/
March 22, 2013
In the Court of Appeals of Georgia A12A1875. PARHAM v. THE STATE.
ANDREWS, Presiding Judge.
Charles Frank Parham appeals his conviction for felony shoplifting. He
contends the trial court erred by denying his motion for a directed verdict and by
considering in aggravation of punishment his earlier guilty plea that was entered
without benefit of counsel. Parham also contends the verdict was strongly against the
weight of the evidence. Although we find no error in the denial of the motions
attacking the verdict, we must reverse the sentence imposed because the trial court
considered a prior conviction which was entered without the benefit of counsel.
1. When an appellate court reviews the sufficiency of the evidence, “the proper
standard for review is whether a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Dean v. State, 273 Ga. 806, 806-807 (1) (546 SE2d 499)
(2001). We review the evidence in the light most favorable to the verdict, giving
deference to the jury’s determination of the proper weight and credibility to be given.
Id. at 807 (1). It is the function of the jury, not an appellant court, to assess the
credibility of the witnesses, to resolve any conflicting evidence, and to determine the
facts. Butler v. State, 273 Ga. 380, 382 (541 SE2d 653) (2001). If competent evidence
exists, though contradicted, to support the facts necessary to prove the State’s case,
we will not reverse the jury’s verdict. Childress v. State, 251 Ga. App. 873, 876 (2)
(554 SE2d 818) (2001).
Viewed in this manner, the evidence shows that Parham was observed by a loss
prevention clerk “shopping off [a] receipt,” i.e., selecting items from the store’s
shelves that are on a receipt. According to the clerk, Parham told her he found the
receipt outside the store.
With the aid of the receipt, he selected three items from the shelves, and then
took them to the front of the store where he secured return stickers from a store
greeter for the items that he had just taken from the shelves. Parham then went to
customer service where he obtained refunds for the items he selected from the store.
When he attempted to leave the store, Parham was stopped by the loss prevention
2 officer who asked him to accompany her to the loss prevention office. While in the
office Parham admitted to shoplifting because he needed cash.
2. Parham contends the trial court erred by denying his motion for a directed
verdict of acquittal. He contends that without the testimony of the store’s greeter and
customer service clerk, the evidence was insufficient to show Parham’s intent when
he took possession of the merchandise.
A motion for a directed verdict of acquittal should only be granted when there
is no conflict in the evidence and the evidence with all reasonable deductions and
inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-
10-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311) (1984). On appeal, a reviewing
court may consider all the evidence in the case, Bethay v. State, 235 Ga. 371, 375
(219 SE2d 743) (1975), and must review the evidence in the light most favorable to
the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984). Further, “In
light of Jackson v. Virginia, . . . the test established there is the proper test . . . to use
when the sufficiency of the evidence is challenged, whether the challenge arises from
the overruling of a motion for directed verdict or the overruling of a motion for new
trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga.
at 527.
3 Review of the evidence in this manner reveals ample evidence from which any
rational trier of fact could find, beyond a reasonable doubt, that Parham was guilty
of shoplifting. Jackson v. Virginia, supra. The testimony of the loss prevention clerk
alone was sufficient to establish all the elements of shoplifting. Gilliam v. State, 237
Ga. App. 476, 478 (1) (517 SE2d 348) (1999). Therefore, the trial court did not err
by denying Parham’s motion for a directed verdict of acquittal.
3. Parham further contends the trial court erred by denying his motion for new
trial because the verdict was against the weight of the evidence. See OCGA § 5-5-21
(“The presiding judge may exercise a sound discretion in granting or refusing new
trials in cases where the verdict may be decidedly and strongly against the weight of
the evidence even though there may appear to be some slight evidence in favor of the
finding.”) “‘Of course, such an argument may only be made to a trial court in a
motion for new trial, not to an appellate court on appeal. We do not have the
discretion to grant a new trial on these grounds.’ (Citations, punctuation and footnotes
omitted.) Hughes v. State, 297 Ga. App. 581, 582 (1) (677 SE2d 674) (2009). See also
Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978).” Lewis v. State, 304 Ga.
App. 831, 833 (1) (698 SE2d 365) (2010). Accordingly, this enumeration of error is
also without merit.
4 As we have affirmed the trial court on the enumerations of error attacking the
verdict, Parham’s conviction is affirmed.
4. Relying on Thompson v. State, 276 Ga. 701 (583 SE2d 14) (2003), Parham
contends the trial court erred by considering his guilty plea, which was taken without
the benefit of counsel. The record shows that after Parham had been found guilty by
the jury, the prosecutor advised the court that the State had three additional certified
copies of convictions. After reviewing the convictions, Parham’s counsel objected to
the court’s consideration of one of the pleas because the plea was entered without
counsel. The prosecutor then asked whether the court was “inclined to consider the
plea that was taken without the benefit of counsel?” The court responded that it
would. The court then, after considering the prior convictions, sentenced Parham to
ten years with the last five years to be served on probation.
The State relies upon Hampton v. State, 289 Ga. 621, 627 (6) (713 SE2d 851)
(2011), for the proposition that when the record does not show that the trial court
relied upon the uncounseled pleas in determining the length of a sentence and the
sentence is within the legal range, appellate courts cannot assume that the trial court
relied upon the uncounseled pleas because trial courts are presumed to consider only
relevant, legal evidence.
5 In this case, however, we know that the trial court considered the plea taken
without counsel because the court said it would. Therefore, the State’s reliance on
Hampton is misplaced, and the trial court erred by considering the uncounseled guilty
plea.
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FOURTH DIVISION DOYLE, P. J., ANDREWS, P. J., and BOGGS, J.
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/
March 22, 2013
In the Court of Appeals of Georgia A12A1875. PARHAM v. THE STATE.
ANDREWS, Presiding Judge.
Charles Frank Parham appeals his conviction for felony shoplifting. He
contends the trial court erred by denying his motion for a directed verdict and by
considering in aggravation of punishment his earlier guilty plea that was entered
without benefit of counsel. Parham also contends the verdict was strongly against the
weight of the evidence. Although we find no error in the denial of the motions
attacking the verdict, we must reverse the sentence imposed because the trial court
considered a prior conviction which was entered without the benefit of counsel.
1. When an appellate court reviews the sufficiency of the evidence, “the proper
standard for review is whether a rational trier of fact could have found the defendant
guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Dean v. State, 273 Ga. 806, 806-807 (1) (546 SE2d 499)
(2001). We review the evidence in the light most favorable to the verdict, giving
deference to the jury’s determination of the proper weight and credibility to be given.
Id. at 807 (1). It is the function of the jury, not an appellant court, to assess the
credibility of the witnesses, to resolve any conflicting evidence, and to determine the
facts. Butler v. State, 273 Ga. 380, 382 (541 SE2d 653) (2001). If competent evidence
exists, though contradicted, to support the facts necessary to prove the State’s case,
we will not reverse the jury’s verdict. Childress v. State, 251 Ga. App. 873, 876 (2)
(554 SE2d 818) (2001).
Viewed in this manner, the evidence shows that Parham was observed by a loss
prevention clerk “shopping off [a] receipt,” i.e., selecting items from the store’s
shelves that are on a receipt. According to the clerk, Parham told her he found the
receipt outside the store.
With the aid of the receipt, he selected three items from the shelves, and then
took them to the front of the store where he secured return stickers from a store
greeter for the items that he had just taken from the shelves. Parham then went to
customer service where he obtained refunds for the items he selected from the store.
When he attempted to leave the store, Parham was stopped by the loss prevention
2 officer who asked him to accompany her to the loss prevention office. While in the
office Parham admitted to shoplifting because he needed cash.
2. Parham contends the trial court erred by denying his motion for a directed
verdict of acquittal. He contends that without the testimony of the store’s greeter and
customer service clerk, the evidence was insufficient to show Parham’s intent when
he took possession of the merchandise.
A motion for a directed verdict of acquittal should only be granted when there
is no conflict in the evidence and the evidence with all reasonable deductions and
inferences therefrom demands a verdict of acquittal as a matter of law. OCGA § 17-
10-1 (a); Taylor v. State, 252 Ga. 125 (312 SE2d 311) (1984). On appeal, a reviewing
court may consider all the evidence in the case, Bethay v. State, 235 Ga. 371, 375
(219 SE2d 743) (1975), and must review the evidence in the light most favorable to
the verdict. Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436) (1984). Further, “In
light of Jackson v. Virginia, . . . the test established there is the proper test . . . to use
when the sufficiency of the evidence is challenged, whether the challenge arises from
the overruling of a motion for directed verdict or the overruling of a motion for new
trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga.
at 527.
3 Review of the evidence in this manner reveals ample evidence from which any
rational trier of fact could find, beyond a reasonable doubt, that Parham was guilty
of shoplifting. Jackson v. Virginia, supra. The testimony of the loss prevention clerk
alone was sufficient to establish all the elements of shoplifting. Gilliam v. State, 237
Ga. App. 476, 478 (1) (517 SE2d 348) (1999). Therefore, the trial court did not err
by denying Parham’s motion for a directed verdict of acquittal.
3. Parham further contends the trial court erred by denying his motion for new
trial because the verdict was against the weight of the evidence. See OCGA § 5-5-21
(“The presiding judge may exercise a sound discretion in granting or refusing new
trials in cases where the verdict may be decidedly and strongly against the weight of
the evidence even though there may appear to be some slight evidence in favor of the
finding.”) “‘Of course, such an argument may only be made to a trial court in a
motion for new trial, not to an appellate court on appeal. We do not have the
discretion to grant a new trial on these grounds.’ (Citations, punctuation and footnotes
omitted.) Hughes v. State, 297 Ga. App. 581, 582 (1) (677 SE2d 674) (2009). See also
Drake v. State, 241 Ga. 583, 585 (1) (247 SE2d 57) (1978).” Lewis v. State, 304 Ga.
App. 831, 833 (1) (698 SE2d 365) (2010). Accordingly, this enumeration of error is
also without merit.
4 As we have affirmed the trial court on the enumerations of error attacking the
verdict, Parham’s conviction is affirmed.
4. Relying on Thompson v. State, 276 Ga. 701 (583 SE2d 14) (2003), Parham
contends the trial court erred by considering his guilty plea, which was taken without
the benefit of counsel. The record shows that after Parham had been found guilty by
the jury, the prosecutor advised the court that the State had three additional certified
copies of convictions. After reviewing the convictions, Parham’s counsel objected to
the court’s consideration of one of the pleas because the plea was entered without
counsel. The prosecutor then asked whether the court was “inclined to consider the
plea that was taken without the benefit of counsel?” The court responded that it
would. The court then, after considering the prior convictions, sentenced Parham to
ten years with the last five years to be served on probation.
The State relies upon Hampton v. State, 289 Ga. 621, 627 (6) (713 SE2d 851)
(2011), for the proposition that when the record does not show that the trial court
relied upon the uncounseled pleas in determining the length of a sentence and the
sentence is within the legal range, appellate courts cannot assume that the trial court
relied upon the uncounseled pleas because trial courts are presumed to consider only
relevant, legal evidence.
5 In this case, however, we know that the trial court considered the plea taken
without counsel because the court said it would. Therefore, the State’s reliance on
Hampton is misplaced, and the trial court erred by considering the uncounseled guilty
plea.
The United States Supreme Court in Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799, 93 ALR2d 733), established the rule that the right to counsel guaranteed by the Sixth Amendment was applicable to the States by virtue of the Fourteenth Amendment, making it unconstitutional to try a person for a felony in a state court unless he had counsel or had made a valid waiver of counsel. In Burgett v. Texas, 389 U. S. 109, 115 (88 SC 258, 19 LE2d 319), it was held: To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that Sixth Amendment right. See also United States v. Tucker, 404 U. S. 443 (92 SC 589, 30 LE2d 592) [(1972)].
(Punctuation omitted.) Clenney v. State, 229 Ga. 561, 564 (4) (192 SE2d 907) (1972).
Accordingly, Parham’s sentence must be vacated and the case remanded to the trial
court for resentencing.
6 Judgment affirmed in part, vacated in part, and case remanded. Doyle, P. J.,
and Boggs, J., concur.