Parker v. State

741 S.E.2d 159, 320 Ga. App. 319, 2013 Fulton County D. Rep. 684, 2013 WL 1137100, 2013 Ga. App. LEXIS 179
CourtCourt of Appeals of Georgia
DecidedMarch 13, 2013
DocketA12A1732
StatusPublished
Cited by5 cases

This text of 741 S.E.2d 159 (Parker 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
Parker v. State, 741 S.E.2d 159, 320 Ga. App. 319, 2013 Fulton County D. Rep. 684, 2013 WL 1137100, 2013 Ga. App. LEXIS 179 (Ga. Ct. App. 2013).

Opinion

Branch, Judge.

Cedric B. Parker was tried by jury and convicted of burglary, aggravated battery, aggravated assault, robbery by intimidation, and robbery by force. Following the denial of his motion for new trial, Parker appeals. He challenges the sufficiency of the evidence of identification, and he contends the trial court erred with regard to awarding restitution. We affirm his conviction but vacate the restitution order and remand for a hearing on that issue.

1. When the appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence” or resolve conflicts in the testimony; instead they defer “to the jury’s assessment of the weight and credibility of the evidence.” (Citation omitted.) Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010). See also Glaze v. State, 317 Ga. App. 679, 680-681 (1) (732 SE2d 771) (2012). Appellate courts determine 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.” (Citation and emphasis omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

Construed in favor of the convictions, the evidence shows that Parker knocked on 85-year-old Esther Eckstein’s door and asked for something to eat and drink. Eckstein had seen Parker twice before, when he previously asked her for money and had a conversation. Eckstein took Parker some food outside, but when she went to the kitchen to get water, Parker appeared in the living room and refused Eckstein’s protests to get out of the house. Eckstein retreated to her bedroom in an attempt to get away, but Parker followed her. When Eckstein sat on the bed, Parker pulled off Eckstein’s diamond rings [320]*320from her fingers so hard that her arm became bruised in the process; Eckstein testified that the rings were valued at $10,000. Parker demanded money and threatened to rape Eckstein if she failed to comply. Parker took some costume jewelry from Eckstein’s dresser and $20 from Eckstein’s purse against her will. At some point, Parker grabbed Eckstein by the neck from behind and pushed her down; Eckstein collapsed to the floor, breaking her hip. Either at the same time or at another point, Parker choked Eckstein, bruising her throat and leaving her with pain that continued through the time of trial. Eckstein eventually fainted and was found by a family member who called for an ambulance.

Eckstein had at least 30 minutes to observe Parker during the crimes. She testified that Parker was wearing a cap and had the sides of his head shaved. She also described a distinctive jacket that Parker was wearing. Eckstein identified Parker in court as the perpetrator. The State introduced a jacket that Parker admitted was his, and Eckstein identified it as the jacket Parker was wearing on the day of the crimes. Eckstein’s neighbor identified Parker as the person to whom he saw Eckstein talking that morning. Parker testified and admitted that at the time of the incident he wore his hair “skinned” or cut short all the way around the sides and that he kept a cap on.

Parker challenges the sufficiency of the evidence of identification and contends the State failed to exclude a reasonable theory of innocence — that another suspect committed the crime. Among other things, he points to evidence that Eckstein failed to pick him out of a photographic lineup. But the issue of identification was fully presented to the jury including the possibility of misidentification. In addition to the evidence set forth above, the jury was given evidence that Eckstein’s neighbor initially identified another suspect but eventually identified Parker as the suspect and that the investigation failed to produce any useful fingerprint evidence. Parker also was allowed to present the testimony of a police officer that he initially investigated a different suspect who appeared to match Eckstein’s description.1 The jury was able to compare Eckstein’s description of the perpetrator with both Parker and a picture of the other suspect.

[321]*321In sum, sufficient evidence was presented to identify Parker as the assailant: the victim and a neighbor identified Parker, the victim identified Parker’s jacket, and the victim’s description of Parker’s hair and hat matched Parker’s own description. And the jury was presented all other evidence concerning Parker’s possible misidentification. Arguments about discrepancies in the victim’s testimony and credibility and other factual issues “relate entirely to matters within the exclusive province of a jury.” (Citation and punctuation omitted.) Smith v. State, 216 Ga. App. 415, 416 (1) (454 SE2d 615) (1995). “Determining the credibility of witnesses and resolving conflicts goes to the weight of the evidence and is for the jury’s consideration.” (Citation and punctuation omitted.) Id. Our conclusion also resolves Parker’s argument that the State failed to exclude the possibility that the other suspect committed the crime.

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

(Citation and punctuation omitted.) Wilson v. State, 275 Ga. 53, 56 (1) (562 SE2d 164) (2002).

2. Following Parker’s conviction, the court sentenced him to a total of twenty-seven years, with seventeen to serve followed by ten years on probation. Immediately after announcing the sentence and without input from the prosecutor or Parker, the court added the following: “Although it may not be collectable, the testimony is she lost ten thousand dollars worth of personal property. Restitution is ordered in that amount.” The court did not conduct a hearing or take any evidence on the matter of restitution. The judgment shows that Parker was ordered to pay the restitution as a condition of his probation. On appeal, Parker argues that the trial court erred (1) by failing to hold a hearing to consider the factors required by OCGA § 17-14-10 and (2) because the evidence was insufficient to establish fair market value. The State argues that Parker waived any objection to the amount of restitution ordered by failing to object when the restitution order was announced.

Under the current law of restitution, Parker was not required to take any affirmative action to trigger a hearing on restitution. Given that restitution was ordered as a part of Parker’s probation, both [322]*322OCGA §§ 42-8-35 (a) (7) and 17-14-7 (b) are applicable to this case.2 The first of these Code sections provides that the restitution amount must be adjudicated if the amount of damage or loss caused by the probationer “is in dispute”:

Unless otherwise provided by law, no reparation or restitution to any aggrieved person for the damage or loss caused by the probationer’s offense shall be made if the amount is in dispute unless the same has been adjudicated[.]

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Bluebook (online)
741 S.E.2d 159, 320 Ga. App. 319, 2013 Fulton County D. Rep. 684, 2013 WL 1137100, 2013 Ga. App. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-state-gactapp-2013.