The appellant was convicted of one count of theft by receiving stolen property, OCGA § 16-8-8, and one count of giving a false name to a law enforcement officer with the intent of misleading the officer as to his identity. OCGA § 16-10-25. For the theft-by-receiving conviction, he was sentenced to ten years’ imprisonment with six years to serve in the penitentiary and four years on probation. He was given a concurrent 12-month sentence for the false-name conviction. His appeal is in this court because he challenges the constitutionality of OCGA § 16-10-25, supra, which provides: “A person who gives a false name or address to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity is guilty of a misdemeanor.” For reasons which follow, we reverse the false-name conviction, on the ground that the evidence is insufficient to support it; therefore, wé do not reach the constitutional question. 1 However, we affirm the theft-by-receiving conviction, as the evidence is sufficient to support it and no reversible error appears. 2
These are the facts. On August 10, 1985, at approximately 9:30 p.m., Archie Scott drove his 1978 Audi Fox automobile to Scott Boulevard Motors, where he went to look at used cars. He parked the Audi in the parking lot, and approximately ten minutes later he observed an unidentified individual steal the car. He reported the car stolen to the police. The car was returned to him approximately five *43 days later, and the hood was damaged.
At approximately 1:30 a.m. on August 11, 1985, DeKalb County Police Officer J. P. Lietch was on a stake-out detail, and he observed this car being driven in a suspicious manner, i.e., as if the driver of the car was “casing” a gasoline station for a robbery. He stopped the car, and the driver, appellant herein, identified himself as “Benjamin Preston.” Another person, one Bobby Lane, was a passenger in the car. The appellant had no license, certificate of title, or other registration papers in his possession. When the police officer checked on the status of the vehicle, he was informed that it was stolen.
At police headquarters, the appellant was interrogated by Detective R. E. Malone, and he identified himself as “Benjamin Toney Preston.” The appellant’s false-name conviction is based on the state’s contention that in a prior arrest, the appellant had been booked as “Timothy Preston.”
There was testimony that Michael Kornegay had had his 1960 Chevrolet stolen on the evening of June 2, 1985. Approximately one week later, during the early morning hours of June 29, DeKalb County Police Officer J. L. Goodrum was on stake-out detail. He observed this vehicle, which had been reported stolen, in the parking lot of a nightclub. He wanted to see if anyone took possession of it, and at approximately 3:45 a.m., the appellant exited the nightclub, entered the vehicle, and attempted to crank it. However, the police officer had disconnected the coil so that the car would not start. The car’s owner, Michael Kornegay, testified that when the car was returned to him, various items were missing, and the radio and speakers had been ripped out.
In this appeal, the appellant argues that: (1) The evidence is insufficient under
Jackson v. Virginia,
We will address the foregoing arguments seriatim.
1. Based on the evidence presented at trial, which primarily consisted of the eyewitness testimony of a police officer, any rational trier of fact could have found the appellant guilty beyond a reasonable doubt of theft by receiving stolen property.
However, we do find insufficient evidence to support the appellant’s false-name conviction. The only evidence supporting this conviction was provided by Detective Malone, the police officer interrogating the appellant after his arrest. On direct examination, Detective Malone testified that when he interrogated the appellant, the appellant gave his name as “Benjamin Toney Preston.” He further testified that, in order to verify the appellant’s identity, he checked the police department’s criminal-history files, and “the files indicated that, under a previous name, [the appellant] was booked in as ‘Timothy Preston.’ ” However, no evidence was introduced as to which of these names was the appellant’s true name and which of these names was his false name. Cf.
Johnson v. State,
2. The trial court did not err in conducting the trial without the appellant’s having been arraigned, in that the appellant expressly waived formal arraignment in a not guilty plea entered prior to trial.
3. The trial court did not violate the appellant’s constitutional rights by denying his request to represent himself or by failing to grant his request to change his attorney.
The Sixth Amendment does not grant a defendant, who does have the absolute and unqualified right to appointed counsel, the additional right to counsel of his own choosing. E.g.,
United States v. Brown,
591 F2d 307, 310 (5th Cir. 1979). And, “[w]hile it may be error to deny one the right to defend his own cause
(Faretta v. California,
4. The conduct of the trial did not violate double-jeopardy rights or constitute a multiple prosecution; nor was it barred by the doctrine of collateral estoppel.
The appellant’s argument to the contrary is based on the fact that he was previously tried in the same court for theft by receiving stolen property in connection with his theft of the 1960 Chevrolet on June 29, 1985. As previously stated, the theft in this case occurred on August 11, 1985.
Although it could be said that these constitute the same offenses as a matter of law, they are different offenses as a matter of fact in that they were established by wholly different evidence, and they did not arise from the same conduct. Thus, there is no bar to either successive prosecution or multiple punishment. See OCGA § 16-1-6 et seq.;
Haynes v. State,
In order for a plea of double jeopardy based on the doctrine of collateral estoppel to be sustainable, the record of the prior proceeding must affirmatively demonstrate that a question of fact requiring proof as an essential element of the state’s case was necessarily determined in the former trial. United States v. Haines, 485 F2d 564 (7th Cir. 1973). Consequently, the appellant’s reliance upon the doctrine of collateral estoppel is misplaced.
5. The trial court did not err in allowing the state to introduce evidence concerning the prior automobile theft. Such evidence was highly relevant on the issue of criminal intent.
Rich v. State,
6. Uniform Superior Court Rule 31.3 establishes certain procedures under which the prosecution is required to give the defendant pretrial notice of its intent to present evidence of similar transactions or occurrences, and, if such evidence is to be introduced at trial, the judge must hold a hearing out of the presence of the jury and approve the prosecution’s request. This Rule is one of procedure and not evidence, and it in no way violates the constitutional requirement of separation of governmental powers. See Art. VI, Sec. IX, Par. I, of the Georgia Constitution of 1983.
7. The complained-of testimony of the police officer who arrested the appellant was admissible as part of the circumstances of the arrest. E.g.,
Bishop v. State,
8. The complained-of jury instruction was not unconstitutionally burden-shifting, nor violative of the defendant’s Fifth Amendment
*46
privilege against self-incrimination. See
Noggle v. State,
Judgment affirmed in part and reversed in part.
Notes
The appellant argues that OCGA § 16-10-25 violates his constitutional right of privacy under
Kolender v. Lawson,
The crime was committed on August 11, 1985. The trial was held on November 20, 21, and 22, 1985. A motion for new trial was filed on January 21, 1986, and an amended motion for new trial was filed on July 10, 1986. The order denying the amended motion for new trial was entered on October 23, 1986. The notice of appeal was filed on October 27, 1986, and the transcript of evidence was filed on October 30, 1986. The record was docketed in this court on November 6, 1986, and the case was submitted for decision on January 20, 1987.