Wilmott v. State

755 S.E.2d 818, 326 Ga. App. 1, 2014 Fulton County D. Rep. 564, 2014 WL 841504, 2014 Ga. App. LEXIS 102
CourtCourt of Appeals of Georgia
DecidedMarch 5, 2014
DocketA13A1666
StatusPublished

This text of 755 S.E.2d 818 (Wilmott 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
Wilmott v. State, 755 S.E.2d 818, 326 Ga. App. 1, 2014 Fulton County D. Rep. 564, 2014 WL 841504, 2014 Ga. App. LEXIS 102 (Ga. Ct. App. 2014).

Opinion

McFADDEN, Judge.

A jury found Michael Wilmott guilty of the offenses of owning, operating or conducting a chop shop in violation of OCGA § 16-8-83 and removing or falsifying a vehicle identification number in violation of OCGA § 40-4-21, and he was convicted of these offenses. He argues on appeal that the jury returned mutually exclusive verdicts. The verdicts, however, were not mutually exclusive but were, at most, inconsistent verdicts that did not require reversal. Wilmott also argues that the trial court erred when, after the state rested, the trial court required him to indicate whether he intended to testify. The trial court, however, had the authority to engage in this colloquy with Wilmott, and the record does not show that the timing of the colloquy harmed him. Accordingly, we affirm.

1. Jury verdicts.

Wilmott argues that his conviction for operating a chop shop in violation of OCGA § 16-8-83 must be reversed because the jury’s verdicts finding him guilty both of that offense and of falsifying a vehicle identification number under OCGA § 40-4-21 were mutually exclusive. See Allaben v. State, 294 Ga. 315, 320 (2) (a) (5) (751 SE2d 802) (2013) (finding, where there was at least a reasonable probability that the jury returned mutually exclusive verdicts for malice murder and reckless conduct, that malice murder conviction must be reversed, both verdicts must be set aside, and a new trial must be had on those counts). As detailed below, the verdicts were not mutually exclusive and do not require reversal.

[2]*2In arguing that the verdicts were mutually exclusive, Wilmott reasons as follows. He was indicted for violating OCGA § 16-8-83 by owning, operating or conducting a chop shop in which he “knowingly alter[ed] a vehicle identification number on a [particular motorcycle] with the intent to misrepresent the identity of a motor vehicle [.]” Under OCGA § 16-8-83 (a), “[a]ny person who knowingly and with intent... [o]wns, operates, or conducts a chop shop ... shall be guilty of a felony[.]” A “chop shop” is defined as

any building, lot, or other premise where one or more persons knowingly engage in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud in order to either: (A) Alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identification, including the vehicle identification number of such motor vehicle or motor vehicle part, in order to misrepresent the identity of such motor vehicle or motor vehicle part or to prevent the identification of such motor vehicle or motor vehicle part; or (B) Sell or dispose of such motor vehicle or motor vehicle part.

OCGA § 16-8-82 (1).

Wilmott also was indicted for violating OCGA § 40-4-22 with respect to the same motorcycle. OCGA § 40-4-22 (a) makes it

unlawful to buy, sell, receive, dispose of, conceal, use, or possess any motor vehicle, or any part thereof, from which the manufacturer’s serial numbers or other distinguishing numbers or identifying marks have been removed, defaced, covered, altered, or destroyed for the purpose of concealing or misrepresenting the identity of such motor vehicle.

The jury, however, found Wilmott guilty of the lesser included offense of violating OCGA § 40-4-21, which pertinently provides that “[a] person who wilfully removes ... or falsifies an identification number of a vehicle or an engine for a vehicle is guilty of a misdemeanor.” OCGA § 40-4-21 (a).

Wilmott reasons that the jury’s decision to find him guilty of the lesser offense of violating OCGA § 40-4-21 (a) means that the jury found he did not have the “purpose of concealing or misrepresenting the identity of [the] motor vehicle” required for the greater offense of violating OCGA § 40-4-22. Consequently, Wilmott argues, he could not have had the necessary intent “to misrepresent the identity of such motor vehicle” required to find him guilty of violating OCGA [3]*3§ 16-8-83 in the manner alleged in his indictment. For this reason, he argues that the jury returned mutually exclusive verdicts which the trial court should have treated as acquitting him of the charge that he violated OCGA § 16-8-83.

The verdicts returned by the jury, however, were not mutually exclusive. ‘^Verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other.” Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008) (citation and punctuation omitted).

A mutually exclusive verdict may be rendered in a particular case where the offenses or acts alleged in the indictment as underlying the [two] counts reflect that the jury, in order to find the defendant guilty on both counts, necessarily reached two positive findings of fact that cannot logically mutually exist.

Flores v. State, 277 Ga. 780, 783 (3) (596 SE2d 114) (2004) (citation and punctuation omitted). The two guilty verdicts returned by the jury in this case can be logically reconciled — a finding that a person, in violation of OCGA § 40-4-21, wilfully removed or falsified the identification number of a vehicle does not logically exclude a finding that the person, in violation of OCGA § 16-8-83, owned, operated or conducted a premise in which he knowingly altered a vehicle identification number with the intent of misrepresenting the vehicle’s identity. The decisions in Zant v. Stephens, 462 U. S. 862, 881 (II) (103 SCt 2733, 77 LE2d 235) (1983), and Dunagan v. State, 269 Ga.

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Dunagan v. State
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Boothe v. State
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Allaben v. State
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Bluebook (online)
755 S.E.2d 818, 326 Ga. App. 1, 2014 Fulton County D. Rep. 564, 2014 WL 841504, 2014 Ga. App. LEXIS 102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilmott-v-state-gactapp-2014.