Sutton v. the State
791 S.E.2d 618
Ga. Ct. App.2016Background
- On Sept. 24, 2012, a deputy observed Timothy Sutton driving erratically, making unusually slow turns and entering and backing out of residential driveways before returning toward the highway.
- Officer stopped Sutton for running a stop sign; Sutton lacked a driver’s license.
- Officer observed socks pulled over Sutton’s shoes and, in the backseat, pry bars, saws, a grinder, a sledgehammer, work gloves, and a dark knit hat.
- Sutton removed his shoes and the socks while handcuffed during transport; he gave inconsistent explanations for his presence in the area.
- Evidence introduced two prior burglary-related convictions (2003 and 2010), the latter involving similar tools; Sutton was indicted and convicted for possession of tools for the commission of a crime (OCGA § 16-7-20(a)).
- Trial court denied new-trial motion; Sutton appealed claiming insufficient evidence, failure to instruct on burglary elements, and ineffective assistance for not requesting that instruction.
Issues
| Issue | Sutton's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for possession of tools for commission of a crime | Evidence only raises suspicion; tools not shown to be recently used or tied to a burglary | Possession of tools plus circumstantial evidence (behavior, socks, inconsistent statements, prior convictions) supports intent to use them in a crime | Affirmed — circumstantial evidence and the tools suffice to prove intent under OCGA § 16-7-20(a) |
| Trial court failure to sua sponte instruct jury on burglary elements | Court should have instructed on burglary because burglary is the underlying crime referenced in indictment | Burglary is not an essential element of the possession offense; jurors can decide if tools are commonly used in burglaries without formal burglary instruction | Affirmed — no plain error; instruction not required and error not obvious |
| Ineffective assistance for not requesting burglary instruction | Counsel deficient for failing to object/request instruction; prejudice follows | Request/objection would have been meritless because burglary is not an element; failing to make meritless objection is not ineffective assistance | Affirmed — Strickland not satisfied; presumption of reasonable strategy stands |
| Requirement to show tools were "capable" or recently used | Tools must be shown capable or recently used to support conviction (relying on Burnette) | Statute requires intent to use tools in crime; recent use or condition not required; intent may be proved circumstantially | Affirmed — Burnette fact-specific; condition/recent use not required as a matter of law |
Key Cases Cited
- Hartzler v. State, 332 Ga. App. 674 (discussing standard of review on sufficiency)
- Jackson v. Virginia, 443 U.S. 307 (established reasonable-doubt sufficiency standard)
- Kenemer v. State, 329 Ga. App. 330 (jurors may use common knowledge to decide if items are commonly used in commission of crime)
- Kennon v. State, 232 Ga. App. 494 (sledgehammer and gloves are burglary tools)
- Burnette v. State, 168 Ga. App. 578 (facts treated as weighing against sufficiency where tools rusty and no evidence of forcible entry)
- Strickland v. Washington, 466 U.S. 668 (two-prong test for ineffective assistance of counsel)
- Butler v. State, 130 Ga. App. 469 (possession of burglary tools and burglary are distinct offenses)