362 S.E.2d 458 | Ga. Ct. App. | 1987
Lead Opinion
Defendant Lay was charged by accusation, along with codefendant Jackson, with the offense of theft by shoplifting. A jury trial was waived and defendant was tried separately before the trial court. The trial court found defendant Lay guilty and she appeals. Held:
1. Defendant contends the evidence at trial was not sufficient to authorize her conviction. The State’s evidence shows that defendant and Jackson were observed by a security employee while shopping in a Wal-Mart store. When the security employee walked past the two
Defendant argues that none of this evidence shows that she was a party to the crime. However, presence, companionship, and conduct before, during and after the offense are circumstances from which the trier of fact could determine that defendant was a participant. See Jones v. State, 242 Ga. 893 (1) (252 SE2d 394). A person who acts as a “look-out” during the commission of a crime is participating in the commission of that crime. DeLoach v. State, 142 Ga. App. 666 (1) (236 SE2d 904). “The weight of the evidence and credibility of witnesses are questions for the jury. Bryant v. State, 174 Ga. App. 468 (1) (330 SE2d 406) (1985). Whether a defendant’s explanation supplies a reasonable hypothesis other than that of the defendant’s guilt is a jury question. White v. State, 253 Ga. 106, 107 (1) (317 SE2d 196) (1984). If a jury is authorized to find that the evidence, although circumstantial, is sufficient to exclude every reasonable hypothesis save that of guilt, the verdict of the jury will not be disturbed by the appellate court unless it is insupportable as a matter of law. Bowen v. State, 173 Ga. App. 361 (1) (326 SE2d 525) (1985). The verdict here is not insupportable as a matter of law and the evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Soltow v. State, 182 Ga. App. 716 (2), 717 (356 SE2d 750). This enumeration of error is without merit.
2. Relying upon the best evidence rule, defendant contends the trial court erred in admitting a photograph of the cassette tapes that were stolen, in place of the original evidence. However, the best evidence rule (or as it is also known, the original document rule) does
Judgment affirmed.
Concurrence Opinion
concurring specially.
I agree with the opinion except I question the relevancy of the principle for which Bowen v. State, 173 Ga. App. 361 (1) (326 SE2d 525) (1985) is cited. The evidence in this case is not solely circumstantial, for a witness directly observed defendant committing the crime by her participation as a party. Thus the. more stringent standard to be applied in measuring the sufficiency of the evidence in circumstantial cases, OCGA § 24-4-6, does not apply. Whittington v. State, 252 Ga. 168, 176 (7) (313 SE2d 73) (1984); Fuller v. State, 166 Ga. App. 734, 735 (2) (305 SE2d 463) (1983).
I point this out because I fear that its inclusion in the opinion might be misinterpreted and brought to bear in cases in which there was at least some direct evidence. I recognize that Bowen was not clearly a solely circumstantial evidence case, but the case on which it relies for the proposition, Dowdy v. State, 150 Ga. App. 137, 139 (257 SE2d 41) (1979), was.