Following a jury trial, Kenny Ray Clark and Dennis James Clark were each convicted of two counts of burglary, theft by receiving stolen property, obstruction of an officer, use of a license plate to conceal the identity of a vehicle, and criminal trespass. Kenny Clark was also convicted of attempting to elude and driving without a license. In these consolidated appeals, both men argue that the evidence presented at trial was insufficient to sustain their convictions of burglary and theft by receiving and that the trial court erred in denying their respective motions for new trial on the basis of an alleged illegal verdict. Additionally, Kenny Clark contends that the trial court erred in denying his motion for a mistrial based on the admission of alleged bad character evidence. For the reasons that follow, we affirm in part and reverse in part.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict.
Sexton v. State,
So construed, the evidence presented at trial showed that on May 20, 2004, Kenny Clark, his uncle Dennis Clark, and a third person broke into a home located at 2365 Powder Springs Road in Cobb County. After throwing a cinder block through a glass door to gain entry, the trio ransacked the house and took various items. They then went to the neighboring residence located at 2375 Powder Springs Road and broke several windows before successfully gaining entry into that home. Their presence triggered the interior motion detector on the security alarm, causing them to flee without actually taking anything. The security company called 911 at 4:14 p.m. to report a suspected burglary at 2375 Powder Springs Road.
One minute later, at 4:15 p.m., Cobb County Police Officer Ronald Criswell happened to observe a station wagon driven by Kenny Clark pull out of the driveway at the 2375 address. The officer had not yet been notified of the 911 call, but his suspicions were raised when he noticed that both Kenny Clark and Dennis Clark, who was sitting in the front seat, avoided making eye contact with him. He noted further that the rear passenger was staring nervously at him while continuously talking to the front passengers. The officer followed the vehicle in order to run a check on the vehicle’s license number. He discovered that the tag on the vehicle was
The station wagon initially accelerated and turned up a side street. It then came to a stop and all three passengers jumped out of the vehicle and fled into the wood line. Concerned for his safety, Officer Criswell requested backup to assist in the pursuit.
A short time later, a citizen reported that two suspicious males had entered a nearby unoccupied home. Officer Criswell and two other officers went to the house and found Kenny Clark and Dennis Clark hiding in a screened-in porch. 1 Sweating and breathing heavily, the suspects were taken into custody without a struggle. At trial, Officer Criswell identified Kenny Clark as the driver of the station wagon and Dennis Clark as the front seat passenger.
A subsequent inventory of the station wagon revealed a number of items, including a rifle, stolen from the 2365 residence. The son of the elderly owner of the 2365 residence identified the items as belonging to his father. He also testified that he took care of the residence for his father and that the appellants did not have the authority to enter his father’s residence. 2
1. Appellants challenge the sufficiency of the evidence supporting their convictions for the burglary of both the 2365 and 2375 residences and for theft by receiving a rifle stolen from the 2365 residence. 3 In support of this argument, appellants rely on Dennis Clark’s trial testimony that he and his nephew had been engaged by the third suspect to help move the items, which the third suspect claimed belonged to him. Dennis Clark maintained that it was not until they saw the officer that the third suspect admitted that the objects had been stolen.
We will not reweigh the evidence on appeal.
Sexton,
Here, Officer Criswell personally observed the appellants exiting the driveway of the 2375 address in a car driven by Kenny Clark within one minute of the internal security alarm being triggered. Several windows had been broken at that residence. The appellants were acting suspiciously. The officer attempted to stop the vehicle after discovering that the license plate on the car did not match the car’s registration, but the appellants fled from the scene on foot. They were later found hiding in a different unoccupied home. This evidence
was sufficient to support their burglary convictions as to the 2375 address. See OCGA§ 16-7-1 (a). See also
Renner v. State,
Upon the appellants’ arrest, it was discovered that their vehicle was filled with items, including a rifle, that had been stolen during the burglary of the adjacent house located at the 2365 address. A cinder block had been thrown through the glass door of that residence. Dennis Clark admitted at trial to being with the third suspect who had taken the items. This evidence was sufficient, in conjunction with the evidence cited above, to sustain the appellants’ convictions of burglary
Citing Dennis Clark’s trial testimony, appellants nonetheless contend that their convictions should be reversed because the case was based on circumstantial evidence and the state failed to exclude every other reasonable hypothesis except that of their guilt. See OCGA § 24-4-6.
As an initial matter, Dennis Clark’s testimony that he was at the crime scene and was aware that the items were being taken was direct evidence of his participation in the crime, even though he may have claimed that his participation was not knowing. Regardless, the jury was authorized to reject Dennis Clark’s explanation of his motive and intent on the day in question.
Evans v. State,
[qjuestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence^] [Wjhere the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.
Robles v. State,
2. The appellants further argue that the verdict rendered by the jury was illegal because their convictions for burglary at the 2365 address and theft by receiving property taken from that residence are mutually exclusive. 4 Based upon the facts of this case, we must agree.
A verdict is mutually exclusive “where a guilty verdict on one count logically excludes a finding of guilt on the other.”
Jackson v. State,
Here, the theft by receiving conviction involved property taken in the burglary of the 2365 address. By convicting the appellants of the crime of burglary at the 2365 address, the jury necessarily found that appellants were at least accomplices in that crime. The jury also necessarily found that the stolen goods found in the automobile and which were in the defendant’s possession were taken in the burglary. As such, appellants were principals in the theft of those items. See
Gray v. State,
Yet, one cannot be a principal thief of stolen property and at the same time be convicted of theft by receiving the same property. See
Phillips v. State,
Consequently, under the facts and circumstances of this case, we must reverse for a new trial the appellants’ convictions oh the crimes of burglary and theft by receiving as to the 2365 address. See
Phillips,
3. Lastly, Kenny Clark argues that the trial court committed reversible error by failing to grant a mistrial following the admission of alleged bad character evidence by a state’s witness. After the trial court denied Clark’s motion for a mistrial, the trial court offered to give a curative instruction, which Clark declined. Clark thereafter failed to renew his motion for mistrial. Consequently, this issue is waived on appeal.
Adams v. State,
Judgment affirmed in part and reversed in part, and case remanded.
Notes
The third accomplice in the station wagon was not apprehended.
The testimony of a property’s caretaker is sufficient to show that an entry was unauthorized. See
Abney v. State,
The appellants do not present argument nor citation to authority and have therefore waived any challenge to the sufficiency of the evidence as to their remaining convictions. See Court of Appeals Rule 25 (a) (3), (c) (2).
A “defendant who does not object to [an] erroneous charge can still raise the mutually exclusive verdicts issue on appeal..., because the judgment entered on a mutually exclusive verdict is deemed void.”
Flores v. State,
Kenny Clark received a sentence of twenty years in confinement on each burglary count, to run concurrently; Dennis Clark received a sentence of fifteen years - ten years to serve and five years on probation - on each burglary count, to run concurrently.