Spinks v. State

745 S.E.2d 653, 322 Ga. App. 387, 2013 Fulton County D. Rep. 2085, 2013 WL 3156168, 2013 Ga. App. LEXIS 527
CourtCourt of Appeals of Georgia
DecidedJune 24, 2013
DocketA13A0239
StatusPublished

This text of 745 S.E.2d 653 (Spinks 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
Spinks v. State, 745 S.E.2d 653, 322 Ga. App. 387, 2013 Fulton County D. Rep. 2085, 2013 WL 3156168, 2013 Ga. App. LEXIS 527 (Ga. Ct. App. 2013).

Opinion

Ray, Judge.

After a jury trial, Richard E Spinks, an alias for a man whose real name is Robert Earl Lee,1 was convicted of burglary and criminal trespass, OCGA §§ 16-7-1 and 16-7-21, respectively. He appeals the trial court’s denial of his motion for a new trial, contending in five enumerations of error that he received ineffective assistance of counsel, and in an additional enumeration that the trial court erred in admitting similar transaction evidence. For the reasons that follow, we affirm.

Although Spinks does not challenge the sufficiency of the evidence used to convict him, we recount it briefly for clarity. Construed most favorably to support the verdict, the evidence shows that on September 2, 2009, when the manager of a BP gas station in Marietta arrived at work, he noticed that slats on a louvered portion of his office door had been removed and damaged, and that his filing cabinet and drawers had been ransacked. The manager reviewed the store’s surveillance video and saw a man, later identified as Spinks, removing the slats from the door and entering restricted areas of the store, including a locked storeroom containing excess inventory and a computer. The video, which was played in color on a high definition 60-inch screen for the jury, showed Spinks wearing blue jeans and a black t-shirt with a large white circular design, as well as a black Coca-Cola ball cap. A police officer stopped Spinks about an hour later on an unrelated matter about two blocks from the BP station. The officer described Spinks as wearing or possessing the same clothing shown in the video, as did a police officer who later interviewed him at the station. Cameras that monitored the store’s outside area recorded images of a red GMC Jimmy vehicle in the parking area of the BP station, and when Spinks was stopped by police on the unrelated matter, he was driving a red GMC Jimmy. The officers who dealt with Spinks on the unrelated matter did not initially know about the BP burglary, but later connected Spinks to the BP burglary after viewing the surveillance video.

1. The evidence was sufficient to sustain the convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). See also Manning v. State, 137 [388]*388Ga. App. 311, 311 (223 SE2d 503) (1976) (evidence sufficient to sustain conviction for burglary even though victim sustained no loss).

2. Spinks argues that the trial court erred in admitting evidence of two similar transactions showing he was involved in burglaries at other gas station convenience stores.

When reviewing the admissibility of similar transaction evidence,

[w]e review a trial court’s evidentiary rulings under an abuse of discretion standard . . . however, we accept a trial court’s factual findings unless they are clearly erroneous, and this is even more apparent where, as here, the purpose of those findings is the application of a mandatory test.

(Citations and punctuation omitted.) Reed v. State, 291 Ga. 10, 14 (3) (727 SE2d 112) (2012). That mandatory test requires the State to show, as to each independent similar act, that it is seeking to admit the evidence for an appropriate purpose, that there is sufficient evidence to show that the accused committed the act, and that there is sufficient connection or similarity between the independent act and the crime charged such that the former tends to prove the latter. Long v. State, 307 Ga. App. 669, 672 (2) (705 SE2d 889) (2011).

At trial, after the court properly instructed the jury on similar transactions, evidence was admitted of a similar transaction that occurred at a convenience store attached to a Chevron station near the interstate, where an individual broke into a locked office and storeroom marked “employees only,” and stole cartons of cigarettes at about 7:30 p.m. Spinks was with that individual, and he created a diversion by spilling hot coffee on his hand and screaming, while another individual took the cigarettes out of the store in garbage bags, which were loaded into a vehicle. Spinks arrived at the Chevron and left in the same vehicle with the individual who took the cigarettes. The tag number on the vehicle was registered to Spinks’ alias Robert Earl Lee. Two Chevron employees identified Spinks in photo lineups.

The second similar transaction involved a burglary at the convenience store attached to a Pilot gas station right off the interstate. An employee who was stocking drinks at the store saw Spinks in a stockroom that is kept locked and is labeled for employees only, and had his manager call the police after Spinks claimed to be looking for a place to wash his hands. The door to a back stockroom containing electronics had been damaged, and two of the locks were partially broken. An employee who did not attend a lineup identified Spinks at trial. The jury also saw store surveillance video of Spinks in the [389]*389storage room. Spinks left in a vehicle with a tag number registered to his alias Robert Earl Lee.

When examining whether transactions are sufficiently similar,

this Court must focus on the similarities between the two acts rather than the dissimilarities. While there must be proof of a sufficient similarity between the independent offense [s] and the instant crime charged, the... crimes need not be carbon copies of one another to be admissible.

(Citation omitted.) Reed, supra.

The testimony of the witnesses in the respective Chevron and Pilot incidents as to the type of store involved (a convenience store attached to a gas station), the presence of Spinks or his accomplice in employees-only areas where items such as cigarettes, drinks, and electronics were stored and could be taken, and the incidents taking place at a time of day when the stores were open and employees were present, all were relevant for the State’s proper purpose of showing bent of mind or intent, course of conduct, and common plan or scheme. Thomas v. State, 290 Ga. 653, 656 (2) (723 SE2d 885) (2012). Further, “these similarities are more than adequate to satisfy the State’s burden of showing a sufficient connection between the similar offense and the offense for which the accused is being tried such that proof of the former tends to prove the latter.” (Citation and punctuation omitted.) Kennedy v. State, 298 Ga. App. 372, 375-376 (2) (680 SE2d 478) (2009) (both offenses were smash-and-grab crimes committed at commercial establishments very near the interstate); Long, supra at 671 (1), 673 (2) (b) (transactions were similar where defendant entered residential areas he was not authorized to be in, and where evidence contradicted his innocent explanations as to why he was there). We find no error in the trial court’s admission of these similar transactions.

3. In five enumerations of error, Spinks argues that he received ineffective assistance of counsel.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington,

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Related

Jackson v. Virginia
443 U.S. 307 (Supreme Court, 1979)
Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Childrey v. State
670 S.E.2d 536 (Court of Appeals of Georgia, 2008)
Grimes v. State
662 S.E.2d 346 (Court of Appeals of Georgia, 2008)
Swint v. State
552 S.E.2d 504 (Court of Appeals of Georgia, 2001)
Kennedy v. State
680 S.E.2d 478 (Court of Appeals of Georgia, 2009)
Seabolt v. State
616 S.E.2d 448 (Supreme Court of Georgia, 2005)
Nichols v. State
653 S.E.2d 300 (Court of Appeals of Georgia, 2007)
Long v. State
705 S.E.2d 889 (Court of Appeals of Georgia, 2011)
Reed v. State
727 S.E.2d 112 (Supreme Court of Georgia, 2012)
Thomas v. State
723 S.E.2d 885 (Supreme Court of Georgia, 2012)
Davis v. State
723 S.E.2d 431 (Supreme Court of Georgia, 2012)
Hill v. State
728 S.E.2d 225 (Supreme Court of Georgia, 2012)
Durham v. State
734 S.E.2d 377 (Supreme Court of Georgia, 2012)
Manning v. State
223 S.E.2d 503 (Court of Appeals of Georgia, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
745 S.E.2d 653, 322 Ga. App. 387, 2013 Fulton County D. Rep. 2085, 2013 WL 3156168, 2013 Ga. App. LEXIS 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spinks-v-state-gactapp-2013.