541 S.E.2d 701 | Ga. Ct. App. | 2000
A Turner County jury found Zachery Jackson guilty of being a party to the crime of the burglary of R. Giddens’ home in Ashbum. Jackson appeals by challenging the sufficiency of the evidence and by claiming error in the content of the trial court’s charge to the jury on “mere presence.” Finding no merit to either contention, we affirm.
1. Jackson first challenges the sufficiency of the evidence corroborating the testimony of co-defendant James Hope, who pled guilty prior to trial and testified for the State. In that regard,
*731 [i]n Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial. The sufficiency of corroborating evidence should be peculiarly a matter for the jury to determine.1
2. Jackson claims reversible error in the trial court’s jury instruction on “mere presence.” We disagree.
Jackson took the stand in his defense and testified that co-defendant Hope was the only perpetrator of the burglary and that he and Bentley had unknowingly accepted a ride with Hope just prior thereto. Jackson testified that he fled from the scene because victim Giddens had a gun. In furtherance of this defense, Jackson submitted a request to charge on “mere presence” that stated “[m]ere presence at the scene of a crime or where criminal acts are committed, even when coupled with flight, is insufficient to authorize conviction.”
The trial court agreed to give an instruction on this principle that was phrased, in essence, “presence and flight without more is not enough.” The record shows that the trial court specifically intended that “ ‘[w]ithout more’ is going to be right after ‘even if coupled with flight.’ It’s going to be phrased just like I have it.” Defense counsel agreed with this instruction. However, the record reflects that, when charging the jury, the trial court stated, “[t]he presence of a person at the scene of the commission of a crime at the time of its perpetration, even when coupled without flight, without more, will not authorize a jury to find the person who was merely present guilty.” (Emphasis supplied.)
Clearly, based on the trial court’s expressed intentions, “without flight” was a palpable slip of the tongue. But we do not find reversible error therein. Jackson was charged in the indictment as a party to the crime; his presence at the scene and his conduct with his co-defendants before, during, and after the offense, including his flight with Hope and Bentley, may be used to infer his guilt as a party to the crime.
Further, in this case, the trial court specifically sent out with the jury a written copy of its entire jury instructions, which included the originally intended statement on “flight” in relation to “mere presence,” as agreed upon during the charge conference. Moreover, the
Judgment affirmed.
(Citations and punctuation omitted.) Short v. State, 234 Ga. App. 633, 635 (507 SE2d 514) (1998).
The jury hung on the issue of Bentley’s guilt.
Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Jackson v. State, 239 Ga. App. 77, 81 (519 SE2d 746) (1999); Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997); Wakily v. State, 225 Ga. App. 56, 57 (1) (483 SE2d 313) (1997); Okongwu v. State, 220 Ga. App. 59, 60-61 (467 SE2d 368) (1996).
(Citation and punctuation omitted.) Turner v. State, 241 Ga. App. 431, 437 (6) (b) (526 SE2d 95) (1999).
See generally Anderson v. State, 262 Ga. 26, 27 (3) (413 SE2d 732) (1992); Patterson v. State, 264 Ga. 593 (449 SE2d 97) (1994).