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Nations v. State

Court of Appeals of Georgia, First Division

March 9, 2018


          BARNES, P. J., McMILLIAN and REESE, JJ.

          Reese, Judge.

         A jury found Tremayne Nations guilty beyond a reasonable doubt of one count of burglary in the second degree and one count of "smash and grab" burglary.[1] He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions, the trial court erred in admitting certain evidence, and the court erred in refusing to give a requested jury instruction. 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. In the early morning hours of January 20, 2014, two men committed burglaries at two different hardware stores in Douglas County. At about 12:50 a.m., a dark-colored Dodge minivan pulled up to the fence surrounding Able Tool Rental on Fairburn Road. Two men wearing gloves and dark clothes exited the van and cut the chain securing the fence's gate with a 24-inch orange-red bolt cutter. They drove the van to the front of the store, so that the sliding door of the van was facing the store, then used the bolt cutter to shatter the glass front door of the store. Within a minute, the men entered the store, took two nail guns, jumped back in the van, and drove away.

         Then, at 2:11 a.m. the same morning, two men driving what appeared to be the same van drove up to the fence of the Ace Hardware store in Lithia Springs. They cut the gate's chain with the bolt cutters and parked with the passenger-side sliding door facing the store. Within a minute, they shattered the store's glass door with the bolt cutters, loaded two generators into the van, and drove away.

         Investigator Dale Kelley worked for the Douglas County Sheriff's Office and learned about the burglaries later that morning. Given the similarities between the burglaries, he believed that they had been committed by the same men. Thus, he issued a statewide "be on the lookout" ("BOLO") alert to see if there had been similar burglaries committed recently in the Atlanta area. The BOLO alert included information about the crimes, as well as pictures of the van and the two suspects that Kelley retrieved from the surveillance cameras at each store.

         A few days later, Kelley received a call from the Gwinnett County Police Department about a similar burglary that had occurred on January 22, 2014, two days after the Douglas County burglaries. According to Gwinnett County officers, at about 3:45 a.m., two men dressed like the Douglas County suspects had burglarized an Ace Hardware store in Loganville. The men parked a dark-colored Dodge minivan in front of the store, shattered the glass door of the store with orange-red bolt cutters, ran inside, and took ten chainsaws, at least one of which was an Echo brand chainsaw, before driving away.

         Investigator Kelley was also contacted by an investigator with the City of Oakwood[3] Police Department about an early-morning burglary that occurred on January 26, 2014, six days after the Douglas County burglaries. In that case, an Oakwood patrol officer observed a dark green Dodge van parked in front of the Howard Brothers hardware store at about 1:40 a.m. The officer turned off his lights and pulled in behind the van. He saw a man dressed in dark clothing exit the van and start to go inside the store through the glass front door, which was shattered. When the officer shone his spotlight on the man, the man turned around, looked at the officer, and jumped back into the van. Moments later, another man exited the store and jumped into the van. The van sped away, and the officer activated his emergency lights and siren and followed. The van went around the hardware store building and collided with the patrol car of the officer's partner, who had driven around to the back side of the building. Although the patrol car was rendered inoperable, the van kept moving, running a red light and driving recklessly at speeds up to 105 miles per hour through the city's two-lane streets, heading toward Atlanta. The officer briefly lost sight of the van when the van's driver ran several stop signs and drove down a poorly lighted narrow road. Moments later, the officer found the van, parked and abandoned, at the end of the dead-end road. Neither suspect was found that night.

         The Oakwood patrol officer could see items in the van that he believed had been stolen, [4] and he called an investigator with his department. The van was transported to a secured, locked garage, where it remained until the investigator obtained a search warrant and processed the vehicle with the assistance of a special agent from the Georgia Bureau of Investigation ("GBI"). Inside the van, they recovered the following items: an "orangish" 24-inch bolt cutter; a screwdriver; a crowbar; a matchbox; two leaf blowers; one glove; a tag for gloves; a global positioning system ("GPS") unit; and a concrete saw. They also recovered an "Echo Quick Start Guide" for the type of chainsaw that had been stolen in the Gwinnett County burglary, [5] and a price tag to a generator that had been stolen in the burglary of the Ace Hardware in Douglas County.[6] Finally, the GBI special agent found a cigarette butt on the carpet between the passenger seat and the center console of the van. The agent took particular notice of the cigarette butt because there was no other evidence of any smoking in the van, i.e., no other butts, ashes, or cigarette odor.[7]

         Officers determined that the Dodge van had been stolen from a Cobb County car repair shop at around 2:00 a.m. on January 21, 2014, the day after the Douglas County burglaries and the day before the Gwinnett County burglary. Investigator Kelley opined that the burglars had likely used a stolen Dodge van in the Douglas County burglaries, then discarded it as quickly as possible before stealing a similar van at the Cobb County shop. He testified that Dodge vans were very easy to steal using only a standard screwdriver, and that they had large, open storage spaces and wide sliding doors that made it easier to load large items and then hide them from view. A dark-colored vehicle was also favored by perpetrators because it was less noticeable than, for example, a red one. In his experience, car thieves often became very proficient at stealing certain types of vehicles, so they tended to repeatedly steal those vehicles.

         Officers also seized the links that were cut on each of the chains that secured the fences of the Douglas County stores; the links were submitted to the GBI Division of Forensic Science (the "state crime lab") for "tool mark" testing. A firearms and tool marks examiner employed by the crime lab testified that both links were cut with the same type of tool, an "opposed blade pinching or shearing tool, " and that the bolt cutter found in the van was this type of tool. The examiner could not conclusively determine, however, whether the bolt cutter found in the van had been the actual tool that cut the links.

         In an effort to see if either of the perpetrators had used a cell phone immediately before or after the burglaries, Investigator Kelley and the Gwinnett County investigator obtained cell tower "dump" records for towers near the Douglas County burglaries and the Gwinnett County burglary.[8] They requested records of all calls made or received from 15 minutes before the approximate time of each burglary to 15 minutes afterward. The Gwinnett County records showed that two phone numbers repeatedly appeared: (404) 468-**** (the "468 number"), and (404) 587-**** (the "587 number"). Specifically, someone made five phone calls from the 468 number around the time of the Gwinnett County burglary; two of those calls were to the 587 number. In the records from the tower near the Able Tool Rental facility in Douglas County, the 468 number showed up twice. And, in the records from the tower near the Douglas County Ace Hardware, the 468 number showed up approximately four minutes after that burglary was committed. Investigator Kelley then obtained the account information for the 468 number, but it listed an invalid address in Atlanta, and Kelley was unable to locate a person by the name of the listed subscriber in Atlanta.[9] Further, the account records showed that the account was activated nine days before the Douglas County burglary and was cancelled on May 9, 2014. The records for the 587 number, however, showed that the subscriber as "Gail Nations." Moreover, the 587 number was the same number the Appellant provided as his sister's cell phone number when he was booked into the Douglas County jail on July 23, 2014, and the Appellant called the 587 number 156 times during the 11 months he spent in jail.

         Finally, Investigator Kelley submitted the cigarette butt to the GBI crime lab for DNA testing. Once the Appellant was arrested and taken to the Douglas County jail, Kelley secured a search warrant that authorized him to obtain a DNA sample from the Appellant. Kelley took buccal swabs of the Appellant and sent them to the GBI crime lab for DNA testing. A DNA analysis of the cigarette butt showed that it contained the DNA of a single individual, the Appellant.

         In addition to this evidence, the State showed that, in 2010, the Appellant pled guilty to burglarizing a commercial facility that rented and sold power tools in Griffin, Spalding County. In that case, at about 2:30 a.m. on June 5, 2010, two men parked a stolen, dark-colored minivan in front of the building and smashed the glass front door. Officers arrived while the burglary was in process and arrested both suspects at the scene; one of the suspects was the Appellant. Afterward, the officers observed that the sliding door of the van was open and that there were tools inside the van. The State presented this evidence in the instant case to prove identity and to disprove mistake or accident, pursuant to OCGA § 24-4-404 (b).[10]

         Ultimately, the Douglas County jury in this case found the Appellant guilty of burglary in the second degree (as a lesser-included offense of "smash and grab" burglary) in the Douglas County Ace Hardware store case, and "smash and grab" burglary in the Able Tool Rental case.[11] 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, [12] 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.[13]

         The standard of Jackson v. Virginia, [14] 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.[15] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant contends that the State presented insufficient circumstantial evidence to support the jury's verdict. Specifically, he argues that the evidence was insufficient to prove that he committed the Douglas County burglaries for the following reasons: there were no eyewitnesses to the burglaries; neither his fingerprints nor his DNA was found at either scene; the surveillance videos did not show the perpetrators' faces; he was not arrested at or near the scene of either burglary; the perpetrators did not implicate him in the burglaries; and he did not confess to the crimes.

         "To 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 ...

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