Chаrles Brandon appeals his conviction and sentence for burglary, theft by taking and entering an automobile with intent to commit theft or a felony. In addition to raising the general grounds, he asserts the trial court erred by giving two improper jury charges, and he claims ineffective assistance of counsel.
Construed in favor of the verdict, the evidence shows that at about 2:20 a.m., Officer Joseph Pobalis of the Richmond County Sheriff’s Department was dispatched to check оut strange noises coming from a landfill. Shortly after entering one gate of the landfill, Pobalis saw a truck crash through a second gate and come toward him. Pobalis got a good look at the driver’s face from a distance of about ten feet. Dragging behind the truck on a chain was a large safe. After the truck passed, Pobalis saw a second man on the property near the landfill buildings, and he began chasing him on foot through the landfill onto neighboring private proрerty where he saw the man attempt to hide underneath a car. Pobalis never lost sight of the man, and he apprehended him beside the car. The man Pоbalis captured was Charles Brandon, the defendant. Brandon was muddy, acting nervous and out of breath.
Sergeant Billy Hambrick also responded to the call. He saw a car parked on the side of the road near the landfill, and he waited by the car. A shirtless man approached on foot. He was sweaty, muddy аnd out of breath, and he said that the car was his and that it was broken *888 down. Because Hambrick had heard Pobalis report that men had run from the scene, he took the man, who gave his name as James Tolver, into custody. A radio belonging to the landfill was found in this car. Shortly thereafter, the man identified as Tolver escаped. Tolver, Brandon’s co-defendant, was arrested on a warrant six weeks later. At trial, Pobalis identified Tolver as the man driving the truck.
Investigator Jerry Howell аnd the director of the landfill testified that the landfill offices and vehicles had been ransacked and burglarized. A truck with a chain and safe attached was fоund resting against a light pole. Various items belonging to the landfill office were found moved from their usual location. But Howell could not get fingerprints from the vehicles and other items at the scene because of the rain.
1. Both Brandon and Tolver testified that they were not at the landfill that night, and they denied all charges. Brandon claimed that he was hiding next to a car because he had been visiting a lady friend in a nearby trailer and he thought the woman’s husband was coming home. But Brandon was chased from the scene of the burglary, and Pobalis caught him without ever losing sight of him. It was rainy and dark, Pobalis did not see the runner’s face, and at one point Pobalis thought two men may have been running ahead of him. But whether Brandon was the man Pobalis chased was a question of fact for the jury.
Next, it is true that mere рresence at the scene of a crime is insufficient to support a conviction.
Walsh v. State,
Here, no one was authorized to be on the landfill property at that hour of the night. Brandon was seen trespassing on the burglarized property at 2:20 a.m. in the immediate vicinity of the burglary while it was taking place. He was nearby when the truck dragging the safe passed, and he fled the scene at the first sight of an officer. The evidence was sufficient under
Jackson v. Virginia,
2. Brandon contends the following charge to the jury was improper: “I charge you that juries are not bound to believe testi *889 mony as to facts incredible, impossible or inherently improbable.” He contends the charge is an improper statement of the law and that it constitutes an improper comment on the evidence. Resolution of the first question decides the case.
The statement was a correct, although incomplete, statement of the law.
Patton v. State,
Courts and juries are not bound to believe testimony as to fаcts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which cannot be impeаched by man, even though speaking under the san ction of an oath.
Id. The high court explained that when testing the sufficiency of the evidence, an apрellate court cannot consider the credibility of witnesses, except that the court may hold that a witness’s testimony is to be accorded no valuе under this circumstance, i.e., when it is not “in accord with natural laws, or is improbable, incredible, or seeks to establish facts which are impossible, or which, if not impossible, must in their very nature be uncertain, vague, indefinite, and insufficient to remove reasonable doubts.” Id. at 234. The court characterized the exception as applying when the testimony is contrary to the “great physical laws of the universe.” Id. at 235. In Patton, the court applied the rule to nullify the testimony of a witness who claimed the ability to recognize a voice from fifty to seventy-five yards away, when only three words were spoken, and when the witness had so little experience with the voice that he had no grounds for claiming to be able to identify it. Id. at 236-237.
We have held that this exception applies in only “extraordinary cases,”
Central of Ga. R. Co. v. Summers,
It is error to give a charge on this proposition of law when it is not warranted by the evidence.
Dixie-Ohio Express v. Brackett,
In this case, there was nothing about Brandon’s alibi that ran contrary to the “great physical laws of the universe.” His story may have been improbable, but it was not impossible. And, it could very well have been true. It сould also be true that Pobalis did lose sight of Brandon in the dark and rain and that Brandon was not the right man. These questions should have been presented to the jury without this inаpplicable charge. See also
Thornton v. State,
For these same reasons we cannot say the error was harmless. Brandon’s alibi was his sole defense, and the erroneous charge discredited his testimony.
3. Brandon also challenges the following jury instruction: ‘You will determine both the law and the facts in this case.” This issue is addressed in
Dasher v. State,
The Georgia Constitution states: “[T]he jury shall be the judges of the law and the facts.” Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a). A previous edition of the Pattern Jury Instructions included a charge: ‘You will determine both the law and thе facts.” This instruction was replaced by a more accurate and complete instruction in January 1996. . . . The better practice would be to limit the instruction to the new pattern charge.
Because the case must be retried, the claim that there was ineffective assistance of counsel is moot.
Judgment reversed.