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Kenemer v. State

Court of Appeals of Georgia

October 21, 2014

KENEMER
v.
THE STATE

Possession of tools for commission of crime. Whitfield Superior Court. Before Judge Boyett.

Judgment affirmed.

G. Brandon Sparks, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

BOGGS, Judge. Barnes, P. J., and Branch, J., concur.

OPINION

Page 22

Boggs, Judge.

James Gregory Kenemer was convicted with a co-defendant of possession of tools for the commission of a crime, theft by taking, and [329 Ga.App. 331] criminal trespass.[1] His motion for new trial was denied, and he files this out-of-time appeal, asserting as his sole enumeration of error the insufficiency of the evidence with respect to his conviction for possession of tools for the commission of a crime. We find the evidence sufficient and affirm.

In reviewing the sufficiency of the evidence,

the relevant question is 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).

So viewed, the evidence shows that around 2:30 a.m. on September 13, 2010, an employee of a hauling company called the police when he discovered two men in the act of taking metal from storage containers in the back yard of the business. The men removed the metal with the aid of flashlights and placed it in the back of a small red pickup truck. They left the scene before the police arrived, but were stopped a short distance away while still within sight of the employee. An officer with the Dalton Police Department testified that the driver, whom he identified as Kenemer, and his passenger were placed under arrest after a " felony traffic stop" based on the " theft-related call" from the witness. A search of Kenemer revealed a " wire cutter type plier tool" in his pocket; on the passenger floorboard of the truck the police found another pair of wire cutters, a flashlight, a lantern which was " open and turned on," and a pair of work gloves with the name " Kenemer" on them. There was mud on the wire cutters, the seat, and the truck tires, and the gloves were " somewhat wet and damp ... like they'd been used recently." The officer testified, [329 Ga.App. 332] based on his experience, that he had encountered gloves, wire cutters, and flashlights while investigating crimes in the past, that those items were primarily associated with property crimes as opposed to " person type crimes," and that they were consistent with the crime he was investigating in this case.

OCGA ยง 16-7-20 (a) provides: " A person commits the offense of possession of tools for the commission of crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime." Kenemer was charged with possessing " gloves, ...


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