Ludy v. State

Court of Appeals of Georgia

Ludy v. State

356 S.E.2d 528, 182 Ga. App. 561, 1987 Ga. App. LEXIS 2643

CourtCourt of Appeals of Georgia

DecidedApril 6, 1987

Docket74083

StatusPublished

This text of 356 S.E.2d 528 (Ludy 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.

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Ludy v. State, 356 S.E.2d 528, 182 Ga. App. 561, 1987 Ga. App. LEXIS 2643 (Ga. Ct. App. 1987).

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Opinion

Banke, Presiding Judge.

Ludy appeals his convictions for robbery and burglary.

While the elderly victims, Mr. and Mrs. Peppers, were at home on the evening in question, Mr. Peppers received a telephone call which prompted him to leave the house. As he was entering his vehi[562]*562ele, he was attacked by a man who dragged him along the ground and beat him repeatedly. Although the assailant’s face was concealed at this time by a ski mask, Mr. Peppers was able to observe that the man’s hands were “knotted.” A wallet containing $20 was taken from the victim by the assailant, who then ran inside the Peppers’ residence. Mrs. Peppers testified that a man wearing a ski mask entered the house by breaking a window and unlocking a door, pushed her to the ground, rifled through her jewelry box and demanded money. When she responded that she had none, he left the house and removed his ski mask, giving Mr. Peppers an opportunity to observe his face. Mr. Peppers made an in-court identification of the appellant as the assailant. Held:

Decided April 6, 1987. Terry W. Haygood, Jr., for appellant. David L. Lomenick, Jr., District Attorney, David L. Whitman, James D. Franklin, Assistant District Attorneys, for appellee.

1. The appellant submits that the following opening remarks to the jury by the trial court had the effect of impermissibly shifting the burden of proof in the case: “Then counsel for the defendant will make an opening statement to you if he desires, that generally is what they expect to prove to you during the trial of the case, or the lack of proof, or whatever.” Since the statement in question concerned the procedure for making opening statements rather than the burden of proof, and since the trial court gave a correct instruction on the burden of proof in its final charge to the jury, we find this enumeration of error to be without merit.

2. The trial court did not err in denying appellant’s motion for directed verdict of acquittal. The evidence presented at trial, viewed in its entirety, was amply sufficient to enable any rational trier of fact to find the appellant guilty of the offenses charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Rautenberg v. State, 178 Ga. App. 165, 167 (342 SE2d 355) (1986).

Judgment affirmed.

McMurray, P. J., and Carley, J., concur. Benham, J., disqualified.

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Banke, Presiding Judge.

Ludy appeals his convictions for robbery and burglary.

While the elderly victims, Mr. and Mrs. Peppers, were at home on the evening in question, Mr. Peppers received a telephone call which prompted him to leave the house. As he was entering his vehi[562]*562ele, he was attacked by a man who dragged him along the ground and beat him repeatedly. Although the assailant’s face was concealed at this time by a ski mask, Mr. Peppers was able to observe that the man’s hands were “knotted.” A wallet containing $20 was taken from the victim by the assailant, who then ran inside the Peppers’ residence. Mrs. Peppers testified that a man wearing a ski mask entered the house by breaking a window and unlocking a door, pushed her to the ground, rifled through her jewelry box and demanded money. When she responded that she had none, he left the house and removed his ski mask, giving Mr. Peppers an opportunity to observe his face. Mr. Peppers made an in-court identification of the appellant as the assailant. Held:

Decided April 6, 1987. Terry W. Haygood, Jr., for appellant. David L. Lomenick, Jr., District Attorney, David L. Whitman, James D. Franklin, Assistant District Attorneys, for appellee.

1. The appellant submits that the following opening remarks to the jury by the trial court had the effect of impermissibly shifting the burden of proof in the case: “Then counsel for the defendant will make an opening statement to you if he desires, that generally is what they expect to prove to you during the trial of the case, or the lack of proof, or whatever.” Since the statement in question concerned the procedure for making opening statements rather than the burden of proof, and since the trial court gave a correct instruction on the burden of proof in its final charge to the jury, we find this enumeration of error to be without merit.

2. The trial court did not err in denying appellant’s motion for directed verdict of acquittal. The evidence presented at trial, viewed in its entirety, was amply sufficient to enable any rational trier of fact to find the appellant guilty of the offenses charged beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Rautenberg v. State, 178 Ga. App. 165, 167 (342 SE2d 355) (1986).

Judgment affirmed.

McMurray, P. J., and Carley, J., concur. Benham, J., disqualified.

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356 S.E.2d 528, 182 Ga. App. 561, 1987 Ga. App. LEXIS 2643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ludy-v-state-gactapp-1987.

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