Michael Stovall appeals his conviction of armed robbery, kidnapping and theft by taking. Ms. Su In Chang and Mr. Leon Chong were entering their room at a motel when they were overpowered by two men and forced into a different room at gunpоint. They were bound with telephone and electrical cords and gagged with torn towels. The men took their money and the keys to Chong’s BMW, which they stole. Chong was unable to identify his assailants. A housekeeper at the motel identified Stovall as having bеen a guest at the motel. Several days after the incident, a BMW bearing the same vehicle identification number as Chong’s car was totalled after a high-speed police chase in Ohio. A police officer testified that two men rаn from the car following the accident. Later the same day, four miles from the scene of the accident, a man checking into his room at a motel was hit with a rock, tied up with telephone cords and gagged with torn towels. Stovall took the victim’s razor and proceeded to shave himself. While shaving, he told the victim that he was in deep trouble in Georgia. He went through the victim’s pockets taking what money he could find. He also took the victim’s car keys and stole his car.
1. Over hearsay objection, a police officer was permitted to read a statement which he had witnessed being written by Su In Chang at the scene of the crime some 45 minutes after the crime was committed. Stovall asserts that the statement was hеarsay because Chang was not present at trial to testify, and therefore, allowing the statement to be read was error. The state argued that the testimony was admissible either as a res gestae exception to the hearsay rulе, or out
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of necessity because Chang’s whereabouts were unknown and prosecution efforts to locate her had been unsuccessful. Because the trial court expressed reservations regarding the unavailability theory after hearing evidence of the state’s efforts to locate her, we assume that the trial court’s basis for allowing the evidence was as a res gestae exception to the hearsay rule. “A trial court’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous.” (Citations and punctuation omitted.)
Brinson v. State,
Having held that the evidence was properly admitted under a res gestae exception to the hearsay rule, we need not address Stovall’s contention based on
Rosser v. State,
2. Stovall asserts that the trial court erred in allowing the police officer to recite the vehicle identification number which he obtained from Chong’s insurance card because the testimony was hearsay. The insurance card was not proffered as evidence in the case. We do not agree with Stоvall that the vehicle identification number itself was hearsay. The number was being offered as evidence that the vehicle identification number provided by the victim in Georgia matched the vehicle identification number taken from the car in Ohiо, which information was provided by the law enforcement agencies there. This tended to show that the vehicle involved in the accident in Ohio was Chong’s car. The actual number was irrelevant. The officer could have as easily testified that he took a vehicle identification number off an insurance card and entered it into the National Crime Information Center (NCIC) computer without stating what the number was. Likewise the officer from Ohio could have established that the number on the NCIC computer was the same as the one he found on the car which had been involved in the accident without ever stating what the number was. From that testimony the jury could have inferred that it was the same car. Even though establishing that the car stolen in Gеorgia was the same car found in Ohio tended to connect Stovall to the similar transaction evidence, it was not essential for that pur
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pose because of the palm print evidence, nor was it essential to prove any оf the crimes being tried in this case. Because it was being offered for a purpose other than to show the truth of the content of the card from which the number was taken, it was not hearsay. Further, as it was not essential to prove the state’s сase, even if there was error in its admission the error was harmless. See
Henry v. State,
3. Stovall argues that the trial court erred in permitting evidence of a similar transaction in Ohio because there was no evidence that Stovall committed that crime. “Before evidence of similar offenses is admissible, two criteria must be met. First, it must be shown that appellant was the perpetrator of the similar offenses, and second, there must be sufficient similarity or connection between the independent crimes and the offense charged that proof of the former tends to prove the latter.” (Citations and punctuation omitted.)
Watkins v. State,
4. Stovall’s assertion that the evidence is insufficient to sustain his conviction is without merit.
Jackson v. Virginia,
5. Stovall enumerates as error the trial court’s failure to charge the jury on false imprisonment as a lesser included offense of kidnap
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ping. “In
State v. Alvarado,
6. Stovall’s assertion that the trial court’s charge to the jury on moral and reasonable certainty constitutes error has repeatedly been held to be without merit. See
Brown v. State,
7. Stovall asserts that his life sentence violates the sentencing mandates of OCGA § 17-10-1 (a) (1) as it existed on the date the crime was committed. On December 29,1991, the statute, in pertinent part provided: “Except in cases in which life imprisonment or the death penalty
must
be imposed . . . the judge fixing the sentеnce shall prescribe a determinate sentence for a specific number of months or years. ...” (Emphasis supplied.)
1
Stovall argues that at the time the crime was committed a life sentence was not mandatory. Therefore, the judge was constrained to sentence Stovall to a specific number of months or years. OCGA § 16-8-41 (b) specifies that an armed robbery conviction shall be punishable by death or imprisonment for life or by imprisonment for not less than five nor more than twenty years. Even if we concede that reading OCGA § 16-8-41 (b)
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and OCGA § 17-10-1 (a) (1) (as it existed at the time) together creates an ambiguity, the specific statute will prevail over the general statute, absent any indication of a contrary legislative intent.
First Nat. Bank of Atlanta v. Sinkler,
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8. Finally, Stovall argues that the trial court erred in denying his motion to suppress evidence obtained in a warrantless search of room 214 of the motel, a room located directly across the hall from the room in which the crimes were committed. “On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous.” (Citation and punctuation omitted.)
Furfano v. State,
Judgment affirmed.
Notes
The statute was amended in 1993 so that it now рrovides: “Except in cases in which life imprisonment, life without parole, or the death penalty may be imposed . . . the judge fixing the sentence shall prescribe a determinate sentence for a specific number of months or years. . . .” (Emphasis supplied.)