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Hamlett v. State

Court of Appeals of Georgia, Fourth Division

May 8, 2019

HAMLETT
v.
THE STATE. HAMLETT
v.
THE STATE.

          DOYLE, P. J., COOMER and MARKLE, JJ.

          Markle, Judge.

         Hashim Hamlett and his brother Salim Hamlett appeal from their convictions for burglary (OCGA § 16-7-1 (2008)), and theft by taking (OCGA § 16-8-2). On appeal, they each challenge the sufficiency of the evidence against them; the admission of prior bad acts evidence under OCGA § 24-4-404 (b); and a jury instruction concerning possession of recently stolen property. Salim also challenges his sentence as cruel and unusual punishment under the federal and Georgia Constitutions. For the reasons that follow, we affirm on all grounds.

         Viewing the evidence in the light most favorable to the verdict, Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979), the record shows that twin brothers Hashim and Salim were charged with six counts of burglary and theft by taking in connection with a scheme to steal high-end appliances from vacant Cobb County homes.[1] In Counts 1 and 2, the brothers were charged with breaking into a home on Timber Ridge and taking a washer and dryer, sofas, chairs, ottomans, and tables. In Counts 3 and 4, the brothers were charged with breaking into a home on Hill Forest Trail and removing a Wolf brand cooking range. In Count 5, the brothers were charged with theft by taking in connection with the removal of a Wolf cooking range from a home owned by Homes by Williamscraft on Tarpley Road. Finally, in Count 6, the brothers were charged with theft by taking for the removal of a Wolf range from a home on Indian Hills Parkway. Because Hashim and Salim challenge only the sufficiency of the evidence with respect to Counts 3, 4, and 5, we confine our discussion to the evidence relevant to those counts.

         (a) Counts 3 and 4 relating to Hill Forest property

         In early 2009, Buckhead Community Bank foreclosed on a home on Hill Forest. The house remained vacant and, in May 2009, someone broke into the home and stole a Wolf cooking range. The serial number of this Wolf range was registered with Wolf, and police recovered this range at the Hamlett's home.

         (b) Count 5 relating to theft from Tarpley Road property

         In 2009, a property Williamscraft owned on Tarpley Road was vacant and advertised for sale. A sales agent discovered a burglary of the property in January 2009. A Wolf cooking range had been removed from the kitchen.

         In March, a woman trying to purchase appliances on the website Craigslist.com found a listing for a Wolf range. She contacted the seller at a number with a 904 area code, and she spoke to a man who identified himself as Steven. She arranged to purchase the range and have it delivered to her home in Massachusetts, but later learned it was stolen. The serial number she was given for the item matched the serial number of the stove taken from the Tarpley Road house.

         (c) Other evidence relevant to the charges

         The jury also heard testimony that on July 15, police officers executed search warrants at a house the Hamlett brothers were renting. During the search, officers also found Hashim's wallet, several pieces of mail in the brothers' names, and real estate listings for different houses that were for sale. Police also found several computers in the house on which police observed Craigslist.com advertisements for the sale of various appliances, and e-mail addressed to stevenbond63@yahoo.com and consolidatedbuilders@ymail.com. The advertisements contained two separate phone numbers, one with a 904 area code and the other with a 336 area code. The internet account was linked to Salim, and police found e-mails for Salim and Hashim on the computers. Additionally, police found photos of high-end appliances, user manuals for Wolf ranges, work orders in the name "Consolidated Builders, Inc.," and delivery orders naming Hashim and Salim as the drivers.

         In May 2009, an officer posed as a buyer and responded to one of the Craigslist.com ads using the 904 phone number. She received a response from the e-mail address steven.bond63@yahoo.com. In June 2009, she made another inquiry to a different Craigslist ad showing the 336 phone number, and she received a response from "Steven" at the e-mail address consolidatedbuilders@ymail.com.

         In addition, the jury heard testimony regarding the burglary charged in Count 6 in which a Wolf range was stolen. The victim testified that in May 2009, she learned the range was posted for sale on Craigslist.com, and she could identify the range due to her custom design. She e-mailed the seller, who was using the e-mail address consolidatedbuilders@ymail.com. Another man was trying to buy the same range off Craigslist and communicated with the seller at the e-mail address stevenbond63@yahoo.com. The serial number of the range he saw in the ad matched the serial number of the range stolen in Count 6.

         The State admitted testimony from three witnesses regarding Salim's 2010 conviction for burglary and possession of tools of a crime. Salim also stipulated to this conviction. The trial court gave two limiting instructions prior to the testimony as to the purpose of this evidence, and advised the jury that it was to be considered solely in connection with the charges against Salim. Neither Hashim nor Salim testified.

         At the close of the State's case-in-chief, both defendants moved for directed verdict. The trial court denied the motions. The trial court instructed the jury using the pattern jury instruction for possession of recently stolen property, and it reminded the jury that Salim's prior convictions were relevant only to the charges against Salim. Both defendants objected to the instruction regarding possession of recently stolen items.

         The jury convicted Hashim and Salim on all counts. Hashim was sentenced to a term of 20 years' imprisonment. Salim was sentenced to 30 years' imprisonment, which consisted of a 20-year term for the burglary convictions, and a consecutive 10-year term for the theft by taking convictions.

         Thereafter, Hashim filed a motion for new trial, as amended, arguing that (1) the evidence was insufficient to sustain his convictions; (2) the trial court erred in admitting into evidence Salim's prior conviction because that conviction had been reversed; and (3) the trial court improperly shifted the burden of proof in its jury instruction on possession of recently stolen property. Salim also filed a motion for new trial, as amended, arguing these same grounds, and adding that the sentence imposed violated his constitutional rights because he was sentenced to a 10-year consecutive term based on the prior conviction that had been reversed. The trial court denied the motions, and these appeals followed.

         Case No. A19A0141

         In Case No. A19A0141, Hashim argues that the evidence was insufficient to convict him; the trial court violated his constitutional rights by admitting evidence of Salim's prior conviction; and the trial court impermissibly shifted the burden of proof in the jury instruction for possession of recently stolen property. We address each in turn, finding no merit to any of the arguments.

         1. Hashim first argues that the evidence was insufficient to convict him of Counts 3, 4, and 5 because the only evidence of his guilt was possession of the stolen items a month or more after the items were stolen. He does not challenge his convictions as to the remaining counts. He explains that the evidence might have been sufficient to show theft by receiving, but not theft by taking or burglary. We are not persuaded.

When evaluating the sufficiency of evidence, the proper standard of review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence. Moreover, a reviewing court must consider all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.

         (Citations and punctuation omitted.) Cunningham v. State, 304 Ga. 789, 791-792 (1) (822 S.E.2d 281) (2018).

         "Whether circumstances were sufficient . . . to exclude every reasonable hypothesis except that of defendant's guilt was a question for the [factfinder]. It is only when the evidence is insupportable as a matter of law that the judgment of conviction may be disturbed, even where the evidence is entirely circumstantial." (Citation and punctuation omitted.) Mays v. State, 306 Ga.App. 507, 511 (1) (a) (703 S.E.2d 21) (2010). Additionally,

[a] participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the ...

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