Johnson v. State
314 Ga. App. 560
Ga. Ct. App.2012Background
- Unoccupied family-owned Cobb County farmhouse burglarized by force; personal property including a wood-burning stove, Jenn-Air stove, vacuum, rug, and copper pipe stolen; extensive damage from copper pipes cut and house flooded; wallet found in basement contained Johnson's driver’s license and identification as a Marietta Recycling customer; Johnson sold 108 pounds of copper pipe to Marietta Recycling the day after the burglary; Johnson had a prior 2005 burglary conviction; Johnson’s fiancé and another witness testified about a man borrowing Johnson’s truck and bringing back stoves, with the man denying involvement and having two prior burglary convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence suffices to sustain the burglary and theft convictions | Johnson argues insufficient link to the crime | State contends circumstantial evidence excludes alternative hypotheses | Evidence sufficient to convict beyond reasonable doubt |
| Whether theft by taking merges with burglary | Theft by taking merged due to overlap | No merger under required evidence test | No merger; burglary and theft by taking upheld as separate offenses |
| Whether prior burglary was admissible as similar transaction evidence | Prior burglary unfairly prejudiced defense | Prior burglary sufficiently similar to prove bent of mind | Admission of prior burglary affirmed as sufficiently similar |
| Whether the jury instruction on recent possession constitutes plain error | Instruction wrongly suggested guilt absent authority for possession | No plain error under Kelly standard | No plain error found |
| Whether restitution amount was supported by the record | $5,000 restitution reflects value and repair costs | No admissible evidence of fair market value or repair costs | Restitution vacated; remanded for new hearing on restitution |
Key Cases Cited
- Parker v. State, 220 Ga.App. 303, 469 S.E.2d 410 (1996) (standard of review for sufficiency on appeal)
- Jackson v. Virginia, 443 U.S. 307 (1979) (sufficiency review to sustain convictions)
- Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006) (merger analysis under 'required evidence' test)
- Williams v. State, 261 Ga. 640, 409 S.E.2d 649 (1991) (admissibility of similar transaction evidence)
- Connelly v. State, 295 Ga.App. 765, 673 S.E.2d 274 (2009) (ineffective assistance review standard; mixed questions of law and fact)
- Hawthorne v. State, 285 Ga.App. 196, 648 S.E.2d 387 (2007) (restitution/admissibility standards for estimating damages)
- In the Interest of E.W., 290 Ga.App. 95, 658 S.E.2d 854 (2008) (measure of damages for restitution; fair market value vs. replacement cost)