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Harvey v. State

Court of Appeals of Georgia, Second Division

February 27, 2018


          MILLER, P. J., DOYLE, P. J., and REESE, J.

          Reese, Judge.

         A jury found Reginald Harvey guilty of burglary in the first degree and felony theft by taking.[1] He appeals from the trial court's denial of his motion for new trial, arguing that the evidence was insufficient to support his convictions, the court erred in admitting certain evidence, and the court erred in sentencing him. For the reasons set forth, infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [2] the record shows the following facts. On October 15, 2014, Harold Cochran drove to his sister-in-law's home in Whitfield County. As Cochran arrived at about 2:40 p.m., he saw a man he did not recognize walking from the garage area of the home. The man was "[v]ery well-dressed, " wearing dark pants, a purple dress shirt, and a lanyard. Cochran started to approach the man, but the man avoided eye contact and quickly got into an older model Cadillac that was parked in the house's driveway. The man backed out of the driveway and started driving away at a high rate of speed, so Cochran followed him and called 911. However, Cochran eventually lost sight of the Cadillac.

         Cochran returned to his sister-in-law's home and talked to a police officer who had responded to the 911 call. Upon entering the house, the officer observed that there was no sign of forced entry and that all of the doors and windows were shut and locked with the exception of one window, which was open several inches. The homeowner arrived home, and, after walking through the house, she told the officer that the only things that appeared to be missing were her jewelry box and several pieces of jewelry. The homeowner also noticed that the ceiling fan in her bedroom had been turned off, even though she always kept it running, even when she was not at home.

         Within a few days, the homeowner gave a police detective a list of the missing jewelry with each piece's approximate value. According to the list, the burglar had stolen, among other things, several diamond rings; a "bridal set" of rings; a pair of tungsten wedding bands; a gold ring engraved with the initials of the homeowner and her late husband; a "pinky" ring engraved with the initials of the homeowner's maiden name; diamond earrings; several necklaces (some with diamonds and pearls); and several watches. The homeowner testified that the total value of the stolen jewelry was "well over $5, 000."

         The detective investigating the burglary checked a website,, that showed recent pawn shop transactions in the area. According to the website, a man identified as "Reginald Harvey" had sold several pieces of jewelry that appeared to match the homeowner's list to at least two local pawn shops on October 16, 2014, the day after the burglary, as well as on October 17 and 22, 2014. The detective contacted the pawn shops, and the shops e-mailed pictures of the jewelry to the detective. He then forwarded the pictures to the homeowner, who identified the items as some of the pieces that had been stolen from her home. The jewelry also matched the items described on the list that the homeowner had provided. The detective then retrieved the jewelry and returned it to the homeowner, although not all of the jewelry that had been stolen was recovered.

         The detective also obtained a search warrant for the Appellant's home. During the search, the detective found a purple dress shirt, a small envelope with "2004 Cadillac DeVille" and "Reginald Harvey" written on it, several jewelry boxes of various sizes, and numerous pieces of jewelry. The detective photographed the jewelry boxes and jewelry and sent the pictures to the homeowner, but none of the items belonged to her. The detective testified that he thought it was odd that the Appellant had so many pieces of women's jewelry and several jewelry boxes because he found no other evidence that a woman lived in the Appellant's house.

         In addition, the detective obtained surveillance camera video recordings from a convenience store that was less than one quarter mile from the house at issue. The recordings showed that, at 2:26 p.m. on the day of the burglary, a man who was wearing a dark-colored dress shirt, a tie, and a lanyard with an identification badge entered the store. The detective also obtained a video recording from a security camera located at a public park near the house. The recording was from the day of the burglary, October 15, 2014, and showed a person walking around the outside of the house at issue, disappearing briefly, then reappearing, and repeating this pattern a few times between 2:30 and 2:40 p.m.

         The Appellant was arrested and charged with burglary in the first degree and felony theft by taking. At trial, in addition to presenting the above evidence, the State showed that the Appellant had entered guilty pleas to multiple counts of residential burglary and theft by receiving jewelry in 1990 and 1996.[3] Ultimately, the jury convicted him on both counts in this case: burglary in the first degree and felony theft by taking. The trial court denied his motion for new trial, and this appeal followed.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [4] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[5]

         The standard of Jackson v. Virginia, supra, is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged.[6] Further, we review the trial court's admission of evidence of other criminal acts for a clear abuse of discretion.[7] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant contends that there was no direct evidence, such as fingerprints inside the victim's home, to prove that the Appellant committed the burglary[8] and that the circumstantial evidence presented by the State was insufficient to support his convictions.

         Under OCGA § 24-14-6, "[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused."

However, the circumstantial evidence need not exclude every conceivable inference or hypothesis - only those that are reasonable. Moreover, whether a hypothesis is reasonable and whether every other hypothesis except the guilt of the accused has been excluded are generally questions for the jury to decide. Because jurors are able to hear and observe the witnesses, and thus are better able to judge the reasonableness of a hypothesis raised by the evidence, this Court will not disturb their findings unless it is unsupportable as a matter of law.[9]

         Here, the circumstantial evidence showed that, on the afternoon of the burglary, a man entered a convenience store near the house that was burglarized. Minutes later, the same man was seen outside the house's garage, and he sped away in a Cadillac when Cochran arrived at the house. Inside the house, a ceiling fan had been turned off, and a jewelry box and jewelry were missing, which indicated that someone had been inside the house after the homeowner had left that day. Over the next few days, the Appellant sold some of the stolen jewelry to at least two local pawn shops. Then, while searching the Appellant's house, police officers found a purple dress shirt similar to the one the man at the house was wearing and an envelope indicating that the Appellant had a 2004 Cadillac DeVille. Officers also found several jewelry boxes and numerous pieces of women's jewelry in the Appellant's home, even though it did not appear that a woman lived there. Finally, the State showed that the Appellant had previously pled guilty to burglarizing several residences.

         In addition to this evidence, the State presented the testimony of the managers of two of the pawn shops at issue to prove that the Appellant was, in fact, the man who sold the homeowner's jewelry to the shops within days of the burglary. The store manager from one of the pawn shops, EZPAWN in Chattanooga, Tennessee, testified about her shop's procedures when someone brought in items to sell. She testified that customers wanting to either sell or pawn an item had to present a valid identification card ("I.D."). A shop employee then appraised the item, and the customer signed the purchase or pawn ticket. The manager admitted that the shop did not pay the fair market value for jewelry it purchased from customers. Every night, the shop uploaded information about all of its transactions onto the website and also sent it to the police department. The manager identified two purchase tickets for jewelry sold to the shop by a person identified as "Reginald Charles Harvey" on October 16 and 22, 2014. The purchase tickets listed the items "Reginald Charles Harvey" sold to the store as, inter alia, a pair of white gold, double-stud diamond earrings; a man's gold diamond ring; a woman's 14-carat gold cluster diamond ring; and a diamond pendant. The tickets had the Appellant's driver's license information on them, and the manager testified that there was no way someone other than the man pictured on the license could have sold the items to the shop using the Appellant's driver's license. In fact, the manager testified that she recognized the Appellant because he was a frequent customer of the pawn shop, and she identified him at trial as the customer she knew as "Reginald Harvey."

         The manager of the other pawn shop, Cash America Pawn in Chattanooga, testified that, when a customer came to the shop to sell an item, the shop employee first checked the customer's I.D., which had to be a valid, state-issued I.D. card. The employee then appraised the item and told the customer how much the shop was willing to loan or pay for the item. For customers wanting to sell an item, the employee created a merchandise purchase receipt; a copy of the receipt would also be stored online on the website. The manager identified a purchase receipt that had the name "Reginald C. Harvey" on it along with information from the customer's driver's license. The receipt showed that the Appellant sold several pieces of jewelry to the shop at 11:20 a.m. on October 16, 2014. According to the shop manager, no one other than the Appellant could have sold the items because "[t]he driver's license picture [had] to match the person in front of us."

         Despite this volume of evidence, the Appellant's counsel argued to the jury that the State had failed to prove that any burglary had actually occurred. Counsel argued that the State had not presented any evidence of a forced entry into the house, fingerprints of an alleged burglar, [10] or pictures of the scene. He also pointed out that there were several other items of value in the house that had not been stolen. Counsel attacked the identification evidence showing that the Appellant was the man who had sold the jewelry to the pawn shops. He also argued, however, that, even if the Appellant had sold the jewelry to the pawn shops, the State had failed to disprove the possibility that the Appellant had obtained the jewelry from someone else, i.e., the person who had actually committed the burglary.[11] Thus, according to counsel, the State failed to prove the Appellant committed a burglary in this case and, instead, was trying to convince the jury to convict the Appellant solely based upon his prior burglary convictions.

         Ultimately, however, the jury heard the evidence, the arguments of counsel, and the instructions from the trial court, including two separate instructions on the limited consideration of the prior guilty pleas. It was solely up to the jury to decide whether the only reasonable explanation supported by the evidence was the Appellant's guilt.[12] We find that the circumstantial evidence presented in this case was more than sufficient to uphold the jury's conclusion that the Appellant had committed the burglary and theft as charged beyond a reasonable doubt.[13]

         2. The Appellant argues that the trial court erred in admitting evidence of other criminal acts he committed several years ago, complaining that the evidence was irrelevant and unduly prejudicial. He contends that the State improperly used the evidence to show that he had a propensity to commit burglaries and to "smear [him] in the eyes of the jury."

         The "other acts" evidence at issue here includes the Appellant's guilty plea to a 1990 accusation charging him with committing six separate residential burglaries (i.e., illegally entering a person's "dwelling house" without authority and with the intent to commit a theft[14]) over a two-month period. In the same accusation, the Appellant pled guilty to two felony and three misdemeanor charges of theft by receiving[15] involving the illegal "disposal" of items he knew to be stolen, which included a diamond cluster ring, a 14K diamond ring, and similar items. In addition, the State showed that the Appellant pled guilty to a 1996 indictment that charged him with committing six counts of residential burglary[16] in a single month and one count of burglarizing the office of an apartment building.

         Upon notice by the State of its intention to present this evidence, the trial court conducted a series of hearings before finding this evidence admissible for the limited purposes of showing the Appellant's intent, the absence of accident or mistake, and, possibly, motive. At trial, before such evidence was presented to the jury, the court instructed the jury on these specific, limited purposes for which this evidence could be considered.[17] The State then presented certified copies of the Appellant's guilty pleas to the previous crimes and read each count in the 1990 accusation and 1996 indictment to the jury.

         (a) OCGA § 24-4-404 (b) ("Rule 404 (b)") applies to the admission of evidence of other acts committed by the defendant and provides, in relevant part, as follows:

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

         Rule 404 (b) "explicitly recognizes the relevance of other acts evidence offered for a permissible purpose" and is therefore "an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence."[18]

         In determining the admissibility of "other acts" evidence under Rule 404 (b), the Supreme Court of Georgia has adopted the test set out by the Eleventh Circuit of the United States Court of Appeals.[19]

Under this test, in order to be admissible, the State must make a showing that: (1) evidence of extrinsic, or other, acts is relevant[20] to an issue other than a defendant's character[21]; (2) the probative value of the other acts evidence is not substantially outweighed by its unfair prejudice, i.e., the evidence must satisfy the requirements of [OCGA § 24-4-403]; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question. In no case may evidence of other acts be admitted for the sole purpose of proving the character of the accused to show that he acted in conformity therewith.[22]

         "[A] trial court's decision to admit other acts evidence will be overturned only where there is a clear abuse of discretion."[23]

         (i) As shown above, the trial court admitted the evidence of the Appellant's prior burglaries and thefts for allowable purposes under Rule 404 (b), i.e., to show his intent, the absence of accident or mistake, and motive. Under the first prong of the test for admissibility under Rule 404 (b), our Supreme Court has adopted the following analysis for the issue of intent:

A defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying Rule 404 (b) evidence absent affirmative steps by the defendant to remove intent as an issue. Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant's state of mind in perpetrating both the extrinsic and charged offenses. Thus, where the state of mind required for the charged and extrinsic offenses is the same, the first prong of the Rule 404 (b) test is satisfied.[24]

         Here, the Appellant pled not guilty to the charges in this case, thus making intent a material issue, and he failed to take affirmative steps to remove the issue from the case.[25]

         Further, the requisite state of mind for committing the burglaries charged in the 1990 accusation and the 1996 indictment is the same as in the instant case, i.e., entering a residence without permission "with the intent to commit a felony or theft therein[.]"[26] Similarly, the intent required to commit a theft - either theft by taking or theft by receiving - is unlawfully obtaining another person's property with the intention of depriving that person of the property.[27] Therefore, the evidence of the other acts committed ...

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