Gaskin v. StateGaskin v. State
- Reporters:
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- Before:
- Smith
Ralph Gaskin was convicted of two counts of burglary,
The evidence presented at trial showed that on the night of August 20, 1992, the offices of an accounting firm burned. A fire investigator testified that the burn pattern on the carpet indicated that a flammable liquid had been used to start the fire, suggesting arson. He also testified that a piece of a glass bottle was found near the origin of the fire. Shortly after the fire, a burglary occurred at a nearby electronics store. A detective testified that access to that store was gained by smashing the glass front door to the business.
At trial, two of Gaskin’s co-defendants, Jermaine Roberts and Marion Stevens, pled guilty and testified for the State, implicating Gaskin and another co-defendant, Frederick Ash, in the burglaries and the arson.
1. Gaskin asserts the general grounds, specifically enumerating as error the trial court’s failure to grant a motion for new trial because the testimony of accomplice Marion Stevens was insufficiently corroborated as to the burglary counts.
A defendant may not be convicted on the uncorroborated testimony of an accomplice.
Whitfield v. State,
159 Ga. App. 398, 400 (6) (283 SE2d 627) (1981);
Stevens testified that the four men were driving around in a car together, and when they stopped for gas, Ash filled a glass Gatorade bottle with gasoline. Stevens indicated that Ash and Gaskin used the bottle filled with gasoline to start the fire at the accounting office in order to divert attention from a planned burglary at Cannon Electronics. Stevens also testified that after Gaskin and Ash started the fire at the accounting office, the four men drove to a trailer park behind Cannon Electronics. There, Stevens, Gaskin, and Ash got out of the car and told Roberts, who was driving, to meet them later at an appointed location. Stevens testified that the three of them broke into the electronics store, and that Gaskin and Ash were to “get” amplifiers and a car alarm.
Roberts testified that he dropped Gaskin off with Stevens and Ash. He testified that when the three men returned to meet him at the appointed location, they were carrying boxes Roberts later learned contained stolen electronics equipment. Roberts’s testimony as to these facts corroborates Stevens’s testimony both factually and by indicating knowledge of an overall plan to commit the arson and the burglary. Only slight corroboration of accomplice testimony is required. “While a defendant may not be convicted on the uncorroborated testimony of an accomplice,
To commit burglary, a person must, “without authority and with the intent to commit a felony or theft therein,” enter or remain within any building or any room or any part of that building.
While mere presence at the scene of a crime is insufficient to show that a defendant is a party to the crime, Brown v. State, 250 Ga. 862, 864 (1) (302 SE2d 347) (1983), criminal intent may be inferred from conduct before, during and after the commission of the crime. Jones v. State, 242 Ga. 893 (1), 894 (252 SE2d 394) (1979). See also Williams v. State, 262 Ga. 677 (1) (424 SE2d 624) (1993). The jury was authorized to infer from Gaskin’s conduct before and after the burglary that Gaskin did in fact take part in both of the crimes. See Day v. State, 197 Ga. App. 875, 876 (399 SE2d 741) (1990) (whether accomplice testimony adequately corroborated to be determined by jury). That inference was valid based on the facts presented in Roberts’s testimony that indicated an overall plan to commit both the arson and the burglary. Roberts dropped Gaskin off with Stevens and Ash behind the electronics store; when they returned, the three men were carrying boxes later determined to contain stolen electronics equipment; when Roberts dropped Gaskin off, Gaskin took some items out of the trunk of the car driven by Roberts and left. These facts were sufficiently corroborated by the testimony of Stevens. The trial court therefore properly denied Gaskin’s motion for new trial on this ground.
2. Gaskin enumerates the insufficiency of corroboration only as to the burglary count, and we therefore do not address the issue as to the arson count in this appeal. Gaskin does, however, enumerate the general grounds as to his conviction for arson. Gaskin asserts that Stevens’s testimony does not directly place him at the scene of the arson; it indicates that he and Ash got out of the car in the vicinity of the accounting office and that they later ran back to the car. But Stevens also testified that when Ash returned to the car he said a distraction had been made. This comment established that the two crimes were connected; they were part of a continuing course of criminal action in which Gaskin was clearly involved.
Viewing the evidence in the light most favorable to the verdict, sufficient evidence was presented to enable a rational trier of fact to find beyond a reasonable doubt that Gaskin was also a party to the crime of arson. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
3. Gaskin contends that the order of restitution was improper for two reasons:
(a) The trial court failed to enter written findings as required by law. This Court held in
Garrett v. State,
175 Ga. App. 400 (333 SE2d 432) (1985), that
(b) Gaskin contends that the trial court also erred in ordering restitution because no evidence was presented as to the reasonable value of the property at the time it was damaged. We find this contention meritorious, and we remand this case to the trial court for a new hearing on restitution.
At the restitution hearing, a partner in the accounting office testified that no attempt was made to determine the fair market value of the destroyed property. This determination was not made because the accounting office’s insurance coverage provided for replacement cost rather than fair market value.
Determination of the amount of damages must be based upon fair market value, which must be determined exactly. Lovell v. State, 189 Ga. App. 311, 313 (3) (375 SE2d 658) (1988) (evidence insufficient when amount of restitution determined by approximation). The correct determination for the amount of restitution is the fair market value of the property rather than the replacement cost. See Sutton v. State, 190 Ga. App. 56, 57 (1) (378 SE2d 491) (1989) (value assigned to the property for which restitution ordered based upon a consideration of the fair market value of a truck of comparable age and condition). See also Hoard v. Wiley, 113 Ga. App. 328, 333-334 (2) (147 SE2d 782) (1966) (testimony regarding cost price must be coupled with evidence showing condition of item both at time of purchase and at time of loss). Because the trial court in this case relied upon replacement cost rather than a determination of fair market value, the order of restitution was improper.
We therefore vacate the order of restitution and remand the case to the trial court for a new hearing on restitution and entry of a new order based upon written findings.
Judgment of conviction affirmed, order of restitution vacated and case remanded with direction.
Pope, P. J., and Andrews, J., concur.