Defendant was charged in Count 1 of a nine count indictment with forgery in the first degree. In Counts 5 and 6, defendant was charged with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, identification credentials bearing the fictitious name, “Joseph Steven Latvis.” In Count 9, defendant was charged with forgery in the second degree in that he did knowingly make and possess, with intent to defraud, an identification card bearing the fictitious name, “Joseph Latvis.” In Counts 2 and 4,
On October 10, 1988, defendant entered a K Mart store in Ken-nesaw, Georgia, seeking a cash refund for K Mart electrical merchandise. Defendant presented the merchandise and a photocopy of a sales receipt. He then entered a Marietta, Georgia, address and the name, “T. Johnson,” on a “REFUND IDENTIFICATION TICKET.” Defendant provided no information in a space designated, “CUSTOMER PHONE NO.” Assistant Store Manager George Burton examined the photocopied receipt and noticed that it reflected a transaction involving the same type equipment defendant was attempting to return. He also noticed that a number on the receipt appeared to be “altered” and that the receipt did not contain the often used logo, “thank you for shopping at K Mart. ...” Mr. Burton questioned defendant as to the authenticity of the receipt and the information on the “REFUND IDENTIFICATION TICKET” and defendant affirmed that he resided in Marietta; stated that he had no telephone number and explained that the receipt “came from somewhere in North Carolina, and his brother needed the original receipt because of a purchase of a boat on the same receipt, and he didn’t know whether he wanted to keep it or not.” Mr. Burton returned the photocopied receipt and the merchandise to defendant and informed defendant that “without proper ID, not able to verify [defendant’s] residence, [he] couldn’t help him.” Defendant then left the store and Mr. Burton alerted other K Mart stores of defendant’s “fishy” activities, describing defendant’s appearance and describing the photocopied receipt and the merchandise defendant presented for cash.
Dennis Goodrich, “a special agent with loss prevention [for] K Mart Corporation,” received the alert on defendant’s activities and, later that afternoon, he observed defendant enter the K Mart store in Acworth, Georgia, and he watched defendant approach the customer service desk and request a refund for merchandise which matched the equipment described in Mr. Burton’s alert. Defendant presented a
Special Agent Goodrich examined the photocopied receipt and “recognized that it was a computerized receipt that . . . most [K Mart] stores use. . . .” He noticed that the receipt reflected a transaction involving the same type equipment defendant attempted to return and that the receipt appeared to reflect accurate prices for the merchandise defendant presented for a refund. Special Agent Goodrich also “noticed several changes on the receipt, that . . . looked to be done deceptively,” i.e., a number on the receipt appeared to be altered, the receipt was blank in an area which normally indicates whether the transaction was completed via cash, check or charge and the receipt did not contain the often used logo, “thank you for shopping at K Mart.”
Special Agent Goodrich asked defendant for identification and defendant “hesitated for a few minutes . . .,” but he eventually produced “a driver’s license or registration, . . . something with the name Terry Johnson.” Defendant then “got a little belligerent and somewhat hostile [and asked,] am I under arrest?” Special Agent Goodrich said, “no, sir[, but] this is a private business, there’s an infraction here, and I’m going to let the law enforcement take care of it.” Defendant responded, “‘if you’re not arresting me I’m leaving.’ ” Defendant then “started to blurt toward the door where the assistant manager was [and defendant] reached back toward his back area. . . .” Special Agent Goodrich responsively “attempted to grab [defendant’s] hand at the elbow area [and] something fell to the ifloor[. Defendant] went to turn around and grab it[, but Special Agent Goodrich] grabbed for it first” and discovered a checkbook [with checks bearing the names, “Latvis and Latius. ...”
Lieutenant J. D. Woodruff and Officer Houston of the Acworth
Defendant’s personal property was inventoried at the police station and conflicting identification credentials were found in defendant’s wallet, including a Georgia driver’s license bearing a photograph of defendant and the name, “Joseph Stephen Latvis.” Defendant’s wallet also contained a laminated “DESIGN SYSTEM, INC.” identification card bearing a photograph of defendant and the name, “Joseph Latvis.” Defendant was later transferred to the Cobb County Jail.
Officer Mike Reece of the Cobb County Sheriff’s “Fraud and Forgery Unit” obtained search warrants for defendant’s “1986 Chevrolet truck with a camper and [defendant’s] Ford Fairmont [automobile].” (The Ford Fairmont was found in the parking lot of the Acworth K Mart and defendant’s camper truck was discovered at a Cobb County campground.) A briefcase was found in the Ford Fairmont and “a brown satchel-type case [was found] in the truck.” The satchel contained a mutilated (cut) Georgia driver’s license with no photograph and reflecting the name, Terry D. Johnson; a North Carolina driver’s license bearing a photograph of defendant and the name, “Joseph Stephen Latvis”; a Commonwealth of Virginia driver’s license bearing a photograph of defendant and the name, “Terry D. Johnson” and “a South Carolina I.D. card [bearing] the name of Terrance Dawane Johnson.” The briefcase found in the Ford Fairmont contained identification credentials and business papers, including “a certificate of baptism for a Richard Allen West, a receipt for application of and the social security number for Richard Allen West, . . . xerox copy of a North Carolina birth certificate in the name of Richard Allen West, a temporary Georgia driver’s license in the name of Richard Allen West, and two South Carolina I.D. cards in the name of Richard Allen West.” The briefcase also contained “a certificate of baptism under the name of Steven Allen Miller, a receipt for application of social security in [the name of] Steven Allen Miller, ... a certified copy of a birth certificate [from] North Carolina [for] Steven Allen Miller, and a Georgia temporary driver’s license in the name of Steven Allen Miller.”
It was later discovered that the photocopied receipt defendant presented at the Kennesaw and Acworth K Mart stores as proof of purchase of the K Mart merchandise defendant attempted to return was a copy of a K Mart receipt, altered to conceal that the transaction had been completed via check. It was also discovered that the]
On April 7, 1989, judgment was entered on the jury’s verdicts and defendant was sentenced. Defendant’s trial counsel did not file a motion for new trial, but on May 5, 1989, he filed a timely notice of appeal. On June 19, 1989, upon the trial court’s determination that defendant was indigent, an attorney, who was not defendant’s trial counsel, was appointed to represent defendant on appeal. Held:
1. Defendant contends the trial court erred in failing to suppress evidence seized by K Mart Special Agent Dennis Goodrich.
“ ‘ “(T)he protection afforded by the Fourth Amendment proscribes only governmental action and is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation of a government official.” ’
Williams v. State,
Dennis Goodrich was not a law enforcement officer at the time he detained defendant, nor was he then acting as an instrument or agent of the government. He was a private citizen working as “a special agent with loss prevention [for] K Mart Corporation.” Consequently, it is unnecessary to determine whether the property seized by Special Agent Goodrich was in violation of defendant’s Fourth Amendment rights. See
State v. Lovig,
2. Defendant contends the trial court erred in failing to suppress evidence seized during the inventory of his personal effects at the Cobb County Jail.
“Property which the arrestee elects to take with him to jail is subject to search under analysis similar to that allowing search incident to an arrest.
United States v. Edwards,
3. Defendant contends the trial court erred in failing to suppress evidence found in his motor vehicles, arguing that law enforcement officers exceeded the scope of the search warrants by opening the briefcase and the satchel found in the vehicles. This contention is without merit.
Search warrants issued for defendant’s truck and automobile authorized searches for “identification, checks and other financial information, and items purchased in any name other than Terry Duane Johnson.” These warrants authorized law enforcement officers “to open any receptacle reasonably that could hold the substance or thing being sought and to discover or seize any item, substance, object, thing or matter, the possession of which is unlawful or which is tangible evidence of the commission of a crime in the State of Georgia. OCGA § 17-5-1 (b) (Code Ann. § 27-301);
Dugan v. State,
4. Defendant contends the trial court erred in failing to dismiss the indictment, arguing that prosecutions for the crimes charged are barred under OCGA § 16-1-7 (b).
OCGA § 16-1-7 (b) requires a single prosecution for crimes arising from the same conduct and that are within the jurisdiction of a single court and that are known by the proper prosecuting officer at the time of prosecution. In the case sub judice, defendant filed evidence showing that “Joseph S. Latuis” plead guilty on March 20, 1989, in the State Court of Cobb County for the misdemeanor offense of uttering a bad check. However, there is no evidence showing that the “Joseph S. Latuis” prosecution for uttering a bad check arose from the same conduct as the crimes charged in the case sub judice. Consequently, the trial court did not err in failing to dismiss the indictment under OCGA § 16-1-7 (b). i
5. In his fifth enumeration, defendant contends the trial court erred in allowing similar transaction evidence, showing that he tendered a bad check for merchandise at the Mableton, Georgia, K Mart store on September 26, 1988. 1
“Evidence of other criminal acts is admissible to show motivej intent, plan, identity, bent of mind or course of conduct. The Stati must show, however, that the accused was the perpetrator of th<
In the case sub judice, the State presented evidence showing that defendant possessed a Georgia driver’s license at the time of his October 10, 1988, arrest and that the Georgia driver’s license contained information used to verify the identity of the maker of a bad check tendered at the Mableton, Georgia, K Mart store on September 26, 1988. (The maker of the bad check was identified himself as “Joseph S.Latvis” and the driver’s license carried by defendant at the time of his arrest was purportedly issued to “Joseph Stephen Latvis.”) This evidence was sufficient to prove defendant’s identity as the perpetrator of the prior criminal act and the evidence was admissible to prove defendant’s intent to defraud others through use of forged documents. Consequently, we find no error in admitting evidence of the prior criminal act.
Dudley v. State,
6. Defendant also asserts the following argument in support of his fifth enumeration: “If the transaction used herein is similar to the crimes for which Defendant is charged, Defendant argues that the Defendant’s plea of guilty to the prior misdemeanor charge has to be similar and double jeopardy must attach. Defendant further argues that if such does not operate as procedural double jeopardy then the allegations testified to herein cannot be ‘similar transactions.’ ”
Defendant’s “procedural double jeopardy” argument inappropriately expands the scope of his fifth enumeration.
Bowen v. State,
7. Defendant contends the trial court erred in failing to dismiss the indictment under his Challenge to the Array of the Grand Jury. This enumeration is not supported by the record.
“No question is presented to this court unless the enumeration of errors and record clearly show that the question was presented to and passed on by the trial court.
Garland v. State,
8. Defendant contends the trial court erred in failing to grant a mistrial after objection to the following closing argument by the State’s attorney: “I’d like to point out . . . that you have not heard one scintilla of evidence, or not one scintilla of evidence has been admitted, not one document or exhibit has been admitted into evidence to rebut the State’s contentions. Nothing the State has presented to you as evidence has been rebutted by the defense.”
An examination of the trial transcript reveals no motion for mistrial in response to the relevant portion of the State’s closing argument. Consequently, this enumeration presents nothing for review.
Betts v. State,
9. Defendant challenges the sufficiency of the evidence as to Counts two through nine of the indictment, arguing that there is no evidence that “he committed any crime nor acted with fraudulent intent using any of the items contained in [the] Bill of Indictment. . . .”
“A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. In the case sub judice, the State presented evidence that defendant was in possession of the identification credentials described in Counts 2 through 9 of the indictment; that the identification credentials were not in defendant’s name and that the identification credentials described in Counts 2, 3, 5, 6, 7 and 9 included photographs I of defendant. The State also proved that defendant used the identification card described in Count 5 of the indictment (a Georgia driver’s license in the name of “Joseph Steven Latvis”) to negotiate a $204.55 check; that the check was purportedly drawn on the account of “Joseph S. Latvis” and that the check was returned not paid. This evi-l dence and evidence showing that defendant identified himself as “T.J Johnson,” “T. Latvis” and “Terry Allen Johnson, Junior” during an| attempt to dupe K Mart out of the sales price of merchandise whicl had been purchased by defendant with a bad check is sufficient tol authorize the jury’s finding, beyond a reasonable doubt, that defendí ant committed forgery in the second degree as alleged in Counts 2, 3J 4, 5, 6, 7 and 9 of the indictment, i.e., that defendant possessed, wit! intent to defraud, identification credentials in the fictitious namei enumerated in Counts 2, 3, 4, 5, 6, 7 and 9 of the indictment. OCGA 16-9-2 (a). See
Jackson v. Virginia,
Defendant was charged in Count 8 with forgery in the second degree in that he did possess a temporary Georgia driver’s license with the “fictitious name, . . . Steven Allen Miller.” The State presented evidence showing defendant possessed a temporary Georgia driver’s license bearing the name of Steven Allen Miller, but failed to prove that the name, Steven Allen Miller, was “fictitious” or that the name, Steven Allen Miller, was used on the Georgia temporary driver’s license in a fictitious manner. Defendant’s photograph does not appear on the temporary driver’s license and there is no evidence that defendant identified himself as Steven Allen Miller. Accordingly, defendant’s conviction under Count 8 of the indictment is reversed.
10. Defendant, on his own behalf, filed a supplemental enumeration of errors and brief after his appellate counsel filed an enumeration of errors and a brief.
“Neither our State Constitution, see Ga. Const. 1983, Art. I, Sec. I, Par. XII, nor the Federal Constitution provides defendant with a right to simultaneous representation by counsel and self-representation.
Smith v. State,
Judgment affirmed in part and reversed in part.