Burglary, etc. Paulding Superior Court. Before Judge Osborne.
Andrew S. Fleischman, for appellant.
Dick Donovan, District Attorney, Thomas A. Cole, Assistant District Attorney, for appellee.
Sandra Streeter was convicted by a jury of burglary, two counts of financial transaction card fraud, three counts of financial transaction card theft, and one count of attempt to commit financial transaction card fraud. She appeals following the denial of her motion for new trial, arguing that her trial counsel was ineffective and that the evidence was insufficient to convict her of burglary and the financial transaction card fraud count which alleged that she used a BB& T Visa credit card (" BB& T card" ) at an AutoBuffs Express [331 Ga.App. 323] Car Wash. (" AutoBuffs" ). As more fully set forth below, we now affirm in part and reverse in part.
Construed to support the jury's verdict, the evidence presented at trial shows that on July 14, 2011, Primrose Schools Franchising Company (" Primrose" ) was conducting a curriculum training program for its employees and franchise owners (collectively referred to as " Primrose employees" ) at its corporate development headquarters located on Cedarcrest Road in Acworth, Georgia. The training seminar had been in session for several days, and all the Primrose employees who worked in the building as well as numerous Primrose employees who worked at other locations were participating in the seminar. The Primrose corporate building contained both training rooms and employee offices, and the doors to the building were normally kept locked. Typically, Primrose employees who worked inside the building used a key code to open the doors to the building, and visitors were " buzzed" into the building by someone disengaging the locks from the inside. However, due to the large number of Primrose employees who were attending the seminar from other locations, the locks on the main doors had been disengaged on the day in question.
At that particular time, Jodi Sherman was working as Primrose's professional development manager and had a private office on the main floor of the building. She was also one of the presenters at the seminar and was in and out of her office all day. As was her custom, her office door was unlocked throughout the day with her purse sitting on the floor; she testified that someone standing in the hallway could probably see it sitting there. However, none of the training classes were being held in that part of the building, and the seminar trainees should not have entered that area unless a Primrose corporate employee brought them there or they wandered off on their own.
Sherman testified that between 10:30 to 11:30 the morning of July 14, 2011, she was in the front office talking to several other employees when she looked out the window and noticed a tall, dark-skinned woman walking around a car parked on a curb outside the building. She said that there was something about the situation that seemed out of place, but she assumed the woman was lost and did [331 Ga.App. 324] not investigate. Sherman also said the woman was fairly far away, and she was unable to identify the woman she saw that day.
At approximately the same time, a training session was being conducted in the cafeteria area of the building, which was located on the ground floor. The doors going into the cafeteria from outside had been left unlocked so that the caterers, who had not yet arrived, could enter to set up lunch. Part way through the session, several people noticed a tall, dark-skinned woman dressed in a bright printed dress and carrying a large handbag walk into the building through that door, which apparently made a distinctive sound when it opened. They did not recognize the woman as being a Primrose employee and did not think she was attending the training seminar. The witnesses said that the woman appeared somewhat startled that she had walked into a room full of people; she looked around and then turned and went through the doors that led into an area where employee offices are located.
Phyllis Thompson, Primrose's director of operations, was one of the people who saw the woman enter the building that day. She said it was very unusual for a visitor to enter through that door, so she approached the woman as she started walking toward the office area. Members of the public were not supposed to enter that area without permission, and Thompson knew that those offices were deserted at that particular time. The woman identified herself as a travel agent and gave Thompson a business card naming the person she said she was supposed to meet. Thompson did not recognize the name but called the Primrose school, which was located nearby, to see if anyone by that name worked at that Primrose location. The school informed her that the name was unfamiliar, so she escorted the woman back out the door. Thompson said the woman was " kind of hasty to get out really quick," and because she assumed the woman was in a hurry to meet up with her client, she just opened the door and let her out.
Thompson and two other employees who saw the woman enter that morning were subsequently shown a photographic lineup containing Streeter's photograph. Only one of the employees was able to identify Streeter from the lineup, and he was also the only Primrose employee who identified Streeter at trial. However, Thompson and another Primrose employee testified that a wig found in Streeter's possession when she was arrested looked similar to the hair of the woman they saw that day, and the other Primrose employee identified the dress Streeter was wearing, which all the witnesses generally described as brightly patterned.
Later that evening, Sherman discovered that her wallet was missing from her purse, and she subsequently spoke to her credit card companies about the use of several of the credit cards that had been [331 Ga.App. 325] in her purse. At trial, the State presented video recordings and ...