Brown v. State
312 Ga. App. 489
Ga. Ct. App.2011Background
- Security guard at a sorority house parking lot at 2:00 a.m. observed a man with his hand on a vehicle door and trying to open it.
- The man fled when confronted; police were called and a description was circulated.
- A second officer spotted a man matching the description entering a nearby sandwich shop, where Brown was identified by the security guard and arrested.
- In court, Brown was identified again, and the jury found him guilty of attempt to commit entering an automobile and loitering or prowling.
- Brown challenged the sufficiency of the evidence for attempt and the denial of a directed verdict on loitering, and argued merger of loitering into the attempted entering offense for sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for attempt to enter automobile | Brown argues insufficient evidence of a substantial step and intent. | State contends act of pulling door handle plus flight proves substantial step and intent. | Evidence sufficient to support conviction |
| Directed verdict on loitering | Brown asserts lack of evidence for loitering given he fled and officers did not seek explanation. | State argues flight permitted exemption under OCGA 16-11-36(b); evidence shows unusual behavior. | No error; denial proper |
| Merger of loitering into attempt sentencing | Brown contends loitering should merge into attempt for sentencing. | State argues offenses have distinct elements and do not merge. | Sentences did not merge; consecutive sentences affirmed |
Key Cases Cited
- Evans v. State, 216 Ga. App. 21 (Ga. Ct. App. 1995) (substantial-step analysis for attempt liability)
- Heard v. State, 299 Ga. App. 44 (Ga. Ct. App. 2009) (evidence sufficiency standard; weigh courts do not)
- Goss v. State, 305 Ga. App. 497 (Ga. Ct. App. 2010) (view evidence in light favorable to verdict)
- O'Hara v. State, 241 Ga. App. 855 (Ga. Ct. App. 2000) (flight can negate right to solicit explanation under 16-11-36(b))
- Tauch v. State, 305 Ga. App. 643 (Ga. Ct. App. 2010) (flight as circumstantial evidence of guilt)
- Pound v. State, 230 Ga. App. 467 (Ga. Ct. App. 1998) (intent to commit theft may be inferred from attempt to break into area of an automobile)
- Drinkard v. Walker, 281 Ga. 211 (Ga. 2006) (required evidence test for merger of offenses)
- Long v. State, 287 Ga. 886 (Ga. 2010) (required evidence test; distinguish elements for merger)
- Howard v. State, 301 Ga. App. 230 (Ga. Ct. App. 2009) (merger analysis under OCGA 16-1-7(a))