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Barstad v. State

Court of Appeals of Georgia

October 3, 2014

BARSTAD
v.
THE STATE

Page 454

Burglary, etc. Douglas Superior Court. Before Judge McClain.

Boyce Larsen, Todd S. Boyce, for appellant.

Brian K. Fortner, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Page 455

Miller, Judge.

Following a jury trial, James Barstad was convicted of burglary (OCGA § 16-7-1 (a) (2010)), theft by taking (OCGA § 16-8-2), and obstruction of an officer (OCGA § 16-10-24 (b)).[1] Barstad appeals from the denial of his motion for new trial, alleging the following: the evidence did not support his convictions; he received ineffective assistance of counsel; and the trial court erred in sentencing him as a recidivist. After a thorough review of the record, we affirm.

" Following a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant is no longer presumed innocent." (Citation and punctuation omitted.) Pyburn v. State, 301 Ga.App. 372 (687 S.E.2d 909) (2009). So viewed, the evidence shows that between June 30 and July 6, 2010, the victim and her family were on vacation. When the victim returned to her house in Douglas County, she noticed that the house had been ransacked and a window was broken. The victim discovered that the following had been stolen from her house: $300-$400 in cash, two flat screen televisions, all of the victim's jewelry, two Coach purses, a Wii gaming system and several Wii games. The victim also noticed an open Coke [329 Ga.App. 215] Zero can on the kitchen counter. The victim testified that the soda can was not on the counter when she left on vacation.

The victim pointed out the Coke Zero can to the investigating officer, who took the can into evidence. The can was subsequently processed for DNA testing. The officer also surveyed the house and concluded that the assailant had entered the victim's house via a downstairs window.

Another officer, who had been investigating a series of burglaries in Douglas County, suspected that Barstad was involved in the crimes. Barstad lived with his girlfriend, Barbara Black, during the time of the burglary in this case. The investigating officer went to Black's residence in late July, and she informed the officer that Barstad was in Florida. After the officer advised Black about his investigation, Black gave police officers consent to search her house. During the search, police officers discovered two watches, a pearl necklace, and a silver bracelet that the victim later identified as having been stolen from her house.

After Barstad returned from Florida, police officers returned to Black's house in an attempt to execute an arrest warrant on Barstad. When Barstad answered the door, a police officer identified himself, informed Barstad that he had an arrest warrant, and asked Barstad to turn around and put his hands behind his back. Barstad stepped further into the house and refused to stop when requested to do so. The police officer then warned Barstad that he would use his taser if Barstad did not stop moving. Barstad continued to move toward the back of the house, and, when he reached for the back door, the police officer used his taser to subdue Barstad. Another police officer then arrested Barstad.

A buccal swab was subsequently taken from Barstad, and the buccal sample was compared to the DNA found on the Coke Zero can found in the victim's house. A forensic scientist concluded that the DNA found inside the ...


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