Rodriguez v. State

Court of Appeals of Georgia

Rodriguez v. State

642 S.E.2d 705, 283 Ga. App. 752, 2007 Fulton County D. Rep. 648, 2007 Ga. App. LEXIS 186

CourtCourt of Appeals of Georgia

DecidedFebruary 27, 2007

DocketA07A0583

StatusPublished

This text of 642 S.E.2d 705 (Rodriguez 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

Rodriguez v. State, 642 S.E.2d 705, 283 Ga. App. 752, 2007 Fulton County D. Rep. 648, 2007 Ga. App. LEXIS 186 (Ga. Ct. App. 2007).

Pincite

Opinion

BLACKBURN, Presiding Judge.

Following a jury trial, Edwin Rodriguez was convicted of burglary,¹ theft by taking,² and criminal trespass.³ He appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred by not sufficiently charging the jury on circumstantial evidence. For the reasons set forth below, we affirm.

Viewed in a light most favorable to the verdict, Davis v. State,⁴ the record shows that in the early morning of March 18, 2005, James Crumpler was walking to work through midtown Atlanta when he heard a loud crashing noise coming from a dry cleaning establishment directly across the street. As he turned toward the dry cleaners, he saw Rodriguez scrambling around on the floor inside the building. A moment later, Rodriguez exited the building and started walking away from the scene. Using his cell phone, Crumpler called the police to report the suspected burglary and began following Rodriguez. At the next intersection, Rodriguez turned the corner and appeared to enter an apartment building. Crumpler continued following while also staying on the line with the police to direct them to Rodriguez’s location. After a minute or two, Rodriguez re-emerged wearing a different shirt and started walking away from the building. Crumpler continued following him, and within a few minutes, the police arrived. Rodriguez was arrested, and the police recovered approximately $45 in loose change from his pockets.

Rodriguez was indicted on one count each of burglary, theft by taking, and criminal trespass. At trial, Crumpler and the responding officer recounted the circumstances surrounding the incident. In addition, the owner of the dry cleaners testified regarding the damage to his store and to the fact that a significant amount of change had been stolen from the store’s cash register. At the trial’s conclusion, the jury found Rodriguez guilty on all three counts of the indictment.⁵ His motion for new trial was denied, and this appeal followed.

Rodriguez contends that the trial court erred in failing to charge the jury on OCGA § 24-4-6, which provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only [753]*753be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” We disagree.

Decided February 27, 2007. Mau & Kondritzer, Kenneth D. Kondritzer, for appellant. Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.

In this matter, the court defined direct and circumstantial evidence while instructing the jury but did not specifically charge OCGA § 24-4-6. Rodriguez, however, did not submit a request to charge the statute. “Where, as here, the State’s case is based upon direct, as well as circumstantial, evidence, the trial court does not err by failing to give the charge sua sponte.” Hill v. State 6 Indeed, the trial court has a duty to charge OCGA § 24-4-6 only when “the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence.” (Emphasis supplied.) Mims v. State.7 See Robinson v. State.8 Because Rodriguez did not request that the statute be charged, the trial court did not err in failing to give it. See Barrino v. State.9 Accordingly, we affirm Rodriguez’s conviction.

Judgment affirmed.

Ruffin and Bernes, JJ., concur.

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BLACKBURN, Presiding Judge.

Following a jury trial, Edwin Rodriguez was convicted of burglary,¹ theft by taking,² and criminal trespass.³ He appeals his conviction and the denial of his motion for new trial, arguing that the trial court erred by not sufficiently charging the jury on circumstantial evidence. For the reasons set forth below, we affirm.

Viewed in a light most favorable to the verdict, Davis v. State,⁴ the record shows that in the early morning of March 18, 2005, James Crumpler was walking to work through midtown Atlanta when he heard a loud crashing noise coming from a dry cleaning establishment directly across the street. As he turned toward the dry cleaners, he saw Rodriguez scrambling around on the floor inside the building. A moment later, Rodriguez exited the building and started walking away from the scene. Using his cell phone, Crumpler called the police to report the suspected burglary and began following Rodriguez. At the next intersection, Rodriguez turned the corner and appeared to enter an apartment building. Crumpler continued following while also staying on the line with the police to direct them to Rodriguez’s location. After a minute or two, Rodriguez re-emerged wearing a different shirt and started walking away from the building. Crumpler continued following him, and within a few minutes, the police arrived. Rodriguez was arrested, and the police recovered approximately $45 in loose change from his pockets.

Rodriguez was indicted on one count each of burglary, theft by taking, and criminal trespass. At trial, Crumpler and the responding officer recounted the circumstances surrounding the incident. In addition, the owner of the dry cleaners testified regarding the damage to his store and to the fact that a significant amount of change had been stolen from the store’s cash register. At the trial’s conclusion, the jury found Rodriguez guilty on all three counts of the indictment.⁵ His motion for new trial was denied, and this appeal followed.

Rodriguez contends that the trial court erred in failing to charge the jury on OCGA § 24-4-6, which provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only [753]*753be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” We disagree.

Decided February 27, 2007. Mau & Kondritzer, Kenneth D. Kondritzer, for appellant. Paul L. Howard, Jr., District Attorney, Stephany J. Luttrell, Assistant District Attorney, for appellee.

In this matter, the court defined direct and circumstantial evidence while instructing the jury but did not specifically charge OCGA § 24-4-6. Rodriguez, however, did not submit a request to charge the statute. “Where, as here, the State’s case is based upon direct, as well as circumstantial, evidence, the trial court does not err by failing to give the charge sua sponte.” Hill v. State 6 Indeed, the trial court has a duty to charge OCGA § 24-4-6 only when “the case includes both direct and circumstantial evidence and the defendant has requested a charge on circumstantial evidence.” (Emphasis supplied.) Mims v. State.7 See Robinson v. State.8 Because Rodriguez did not request that the statute be charged, the trial court did not err in failing to give it. See Barrino v. State.9 Accordingly, we affirm Rodriguez’s conviction.

Judgment affirmed.

Ruffin and Bernes, JJ., concur.

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642 S.E.2d 705, 283 Ga. App. 752, 2007 Fulton County D. Rep. 648, 2007 Ga. App. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rodriguez-v-state-gactapp-2007.

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