Following a jury trial, Olufunke Wegman-Fakunle was convicted of one count of theft by shoplifting. Wegman-Fakunle appeals her conviction, arguing that (1) the trial court erred in admitting photographic evidence at trial, and (2) the trial court erred in refusing to direct a verdict for appellant because of an alleged variance between the accusation made against her and the evidence presented at trial. Finding that Wegman-Fakunle’s arguments lack merit, we affirm.
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Viewed in the light most favorable to the verdict,
Green v. State,
The employee escorted Wegman-Fakunle to the management office, wherein the manager called the police and photographed the medicine boxes. A police officer arrested Wegman-Fakunle after taking statements from both the Kroger employee and manager.
The formal accusation charged appellant with the offense of theft by shoplifting, alleging that she “concealed] merchandise, to wit: 1 (one) bottle of Nyquil, and 1 (one) box of Alavrt [sic] [a]llergy medication.”
1. In her first enumeration of error, Wegman-Fakunle argues that the trial court erred when it admitted photographs of the stolen boxes taken by the Kroger manager, as opposed to the boxes themselves. She contends that the State did not lay a proper foundation for admission of the photographs in light of “deep discrepancies” in the testimony, i.e., Wegman-Fakunle’s denial that she had placed the medicine in her purse or removed the security tabs, and her denial that the medicine depicted in the photographs was the medicine that she had handled at all. She uses the fact that the accusation states that she took a “bottle of Nyquil,” as opposed to a box of Nyquil, to further support her position.
Foundation is properly laid for the admission of a photograph by showing “it is a fair and accurate representation of the [thing] depicted. Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness have been present when the photograph was taken.” (Citation omitted.)
Isaacs v. State,
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Here, the Kroger manager testified that she had taken the photographs of the medicine boxes that the employee testified had been in Wegman-Fakunle’s purse, and that the pictures “fairly and accurately represent what those items looked like at the time.” Indeed, Wegman-Fakunle herself testified that the photographs depicted “the type of medicine I got.” This testimony was sufficient to establish a foundation for admission of the photographs. See
Pless,
Wegman-Fakunle’s arguments with respect to the discrepancies between her testimony and that of the Kroger staff go to the credibility of the witnesses, as opposed to the admissibility of the evidence, and lie squarely with the jury. “It is the function of the jury, not this Court, to assess the credibility of the witnesses, to resolve conflicting evidence, and to determine the facts.”
Dickerson v. State,
2. Wegman-Fakunle next contends that the discrepancy between the formal accusation, which alleged that she took a bottle of Nyquil, and the evidence adduced at trial, which showed that she actually took a box of Nyquil, constitutes a fatal variance that demands reversal. We disagree.
“Not every variance in proof from that alleged in the indictment is fatal.” (Citations and punctuation omitted.)
Glass v. State,
The variance between Wegman-Fakunle having been accused of taking a bottle of Nyquil, as opposed to a box of Nyquil, amounts to a minor variance related to the description of the stolen property and
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did not subject her to any of the dangers set forth above. Wegman-Fakunle was not misled or otherwise prejudiced by the variance, particularly in light of her admission that the medicine pictured was “the type of medicine I got.” See
In the Interest of J. D. T.,
Judgment affirmed.