SECOND DIVISION
MILLER, P. J.,
DOYLE and REESE, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 9, 2017
In the Court of Appeals of Georgia
A17A0968. PUCKETT v. THE STATE.
REESE, Judge.
A Gwinnett County jury found Mary Puckett guilty of kidnapping, felony theft
by taking a motor vehicle, and two counts each of armed robbery and false
imprisonment.1 She appeals from the denial of her motion for new trial, contending
that the evidence was insufficient to support her convictions, that the evidence was
insufficient to support a felony sentence on the theft by taking charge, and that she
received ineffective assistance of counsel. For the reasons set forth, infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,2 the record reveals the
following facts. On April 2 and 3, 2015, two incidents involving armed robbery, false
1
OCGA §§ 16-5-40 (a); 16-8-2; 16-8-12 (a) (1) (C); 16-8-41 (a); 16-5-41 (a).
2
See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
imprisonment, kidnapping, and theft by taking occurred at the Red Roof Inn on
Lawrenceville Suwanee Road in Gwinnett County. The parties to the crimes included
Kayla Folds, Andy Ulysse, Teddy Williams, Cornelius Cupsa, and the Appellant,
Mary Puckett. The Appellant was Ulysse’s girlfriend, and the couple lived with Folds
and Williams.
Before the first incident occurred on April 2, Ulysse told the Appellant to get
some bullets and bring them to him in Room 232 of the Red Roof Inn, and the
Appellant complied. The Appellant then left the room and waited in Williams’ car in
the motel’s parking lot.
The first incident involved a man named Joshua Smith, who called Folds, a
prostitute, and made an appointment for her services. Folds instructed Smith to come
to Room 232 of the Red Roof Inn. When he arrived at the motel, Smith noticed a car
with its headlights on in the parking lot, parked so it was facing the street and could
exit quickly. Smith knocked on the door to Room 232 and, when Folds answered the
door, she mouthed the words “I’m sorry.” As Smith took a step into the room, he was
struck in the head by Ulysse, who had been standing behind the door. Williams and
Cupsa then came out of the bathroom carrying guns and forced Smith to the floor,
threatened to kill him, and demanded his wallet, credit cards, phone, and car keys.
2
Smith informed Ulysse that he had already withdrawn the maximum amount
of cash allowed from the ATM because he was going on vacation, but told him there
was more money at his apartment. Ulysse forced Smith down the motel’s stairs at
gunpoint and made him get into the driver’s seat of Smith’s car. The Appellant, who
was sitting in Williams’ car and saw the men walk to Smith’s car, called Ulysse to ask
for the address of where they were going. Smith drove Ulysse to Smith’s apartment.
The Appellant followed them in Williams’ car, accompanied by Folds, who was in
the front passenger seat, and Williams, who was in the seat directly behind the
Appellant. During the trip, however, the Appellant got lost and called Ulysse for
directions.
While the Appellant, Folds, and Williams were lost, Ulysse and Smith arrived
at Smith’s apartment. Ulysse took $1,200 in cash and other items from the apartment.
Ulysse then called the Appellant and told her to come pick him up from Smith’s
apartment. The Appellant eventually found her way to Smith’s apartment complex,
picked up Ulysse, and drove back to the Red Roof Inn.
Smith did not call the police after the armed robbery, explaining to the jury at
the Appellant’s trial that he was happy to be alive and had only lost material things
that could be replaced. Police officers subsequently interviewed him, however, as a
3
result of their investigation of the second incident at issue in this case. During the
interview, Smith told the officers that the people who attacked and robbed him knew
where he lived and he was terrified of them.
The second incident occurred later the same night when another man, Duane
Gardner, called Folds and arranged to meet her at the same Red Roof Inn. Upon
entering Room 232, Gardner saw Folds and the Appellant. The two claimed they were
sisters, and the Appellant left the room shortly after Gardner arrived. However, before
the Appellant left, Folds gave her the room key to give to Ulysse and Williams.
The Appellant went downstairs to Williams’ car, where Ulysse and Williams
were waiting, and sat in the back seat of the car. Williams drove to the other side of
the motel and parked so the car was facing Room 232. Ulysse and Williams then left
the car while the Appellant remained in the back seat.
Shortly after the Appellant had left Room 232, Gardner and Folds were on the
bed when there was a knock on the door. Folds told Gardner that it was her sister, and
she opened the door. Instead of the Appellant, however, it was Ulysse and Williams;
both men were carrying guns. Ulysse and Williams entered and immediately
demanded Gardner’s money, car keys, cell phone, and debit card pin number. Ulysse
forced Gardner to lie down in a corner of the room and threw a sheet over his head.
4
Ulysse warned Gardner that, if the pin number did not work, “my friend is going to
shoot you,” and then left.
Ulysse went downstairs and told the Appellant, who was still waiting in
Williams’ car, to get out and follow him. The Appellant and Ulysse got into
Gardner’s 2002 Honda Accord, and the Appellant started to drive. They heard a
gunshot coming from the direction of Room 232, however, so the Appellant parked
the car in front of the Red Roof Inn. The Appellant and Ulysse got out of Gardner’s
car and walked to the parking lot of the Super 8 motel next door. Ulysse told the
Appellant to go back to the Red Roof Inn to see if the police were there, and the
Appellant complied. When the Appellant returned to Ulysse, they hid in some nearby
bushes for about five minutes. Ulysse and the Appellant then separated briefly before
meeting up again at a nearby Chevron gas station.
Meanwhile, shortly after Ulysse had left the hotel room, Williams’ shotgun
went off. Gardner jumped up, scuffled with Williams, and escaped the motel room.
Gardner ran outside and into the street, where he encountered an officer who was
conducting a traffic stop. Gardner told the officer that he had just been robbed by two
men with guns. The officer had Gardner sit in the patrol car and called for backup
5
assistance. While waiting, Gardner suddenly saw the Appellant and Ulysse outside
the Chevron station, and he alerted the officer.
Two other officers went to the Chevron station, where they saw the Appellant
and Ulysse standing outside a car, talking to the car’s driver. One of the officers
asked the Appellant and Ulysse to step over to the patrol car so he could talk with
them, while the other officer spoke with the driver. The driver said that the Appellant
and Ulysse had approached her car and asked if they could use her phone. During a
subsequent search of a nearby area of trees and overgrown brush, an investigator
found a sweatshirt that matched Gardner’s description of one worn by one of his
assailants, along with a hat, a loaded handgun, and car keys. The car keys belonged
to Gardner. Further, at the time the Appellant and Ulysse were detained by officers
outside the Chevron station, Ulysse was not wearing a shirt.
Police officers transported the Appellant and Ulysse to a police station, where
an investigator interviewed them separately. The Appellant admitted to him that she
had been in Room 232 of the Red Roof Inn earlier that night to smoke marijuana, but
she repeatedly denied any knowledge about the armed robbery. Officers released both
the Appellant and Ulysse after their interviews, but, following further investigation
of both incidents, including a second interview of the Appellant, police officers
6
arrested the Appellant on the instant crimes.3 The State ultimately charged the
Appellant with the armed robberies of Smith and Gardner, the false imprisonment of
Smith and Gardner, the kidnapping of Smith, and the felony theft by taking of
Gardner’s car.
At the Appellant’s jury trial, in addition to presenting the above evidence, the
State played a patrol car “dashcam” recording of Gardner’s encounter with the police
officer in the street immediately after the armed robbery and the resulting detention
of the Appellant and Ulysse at the Chevron station. The recording at the Chevron
station showed the Appellant laughing and joking with Ulysse and two police officers
while they waited outside the patrol car for information about the investigation that
other officers were conducting at the Red Roof Inn. After the officers put Ulysse in
the backseat of the patrol car, the recording shows that the Appellant continued to
laugh and chat with the officers outside the car. Despite being physically separated
from Ulysse and in the presence of two police officers, however, the Appellant never
told the officers that she was afraid of Ulysse, that she was being coerced by him, or
that she needed their protection from him. Instead, she consistently expressed
3
It appears that officers were unable to locate Ulysse and arrest him and that
he was still at large at the time of the Appellant’s trial.
7
complete ignorance about any crimes that had been committed at the Red Roof Inn.
The State also played an audio-recording of a phone call from the Appellant to Ulysse
that she made while incarcerated on the instant charges, as well as surveillance tapes
from the Red Roof Inn and the Super 8 motel next door that showed, among other
things, the Appellant driving away in Gardner’s car and the Appellant’s attempt to
flee the area with Ulysse after they heard the gunshot that preceded Gardner’s escape.
The Appellant’s defense at trial was that she did not know that Ulysse and the
others were planning to commit the crimes before they occurred, she did not know
that crimes were being committed at the time they happened, and she did not
participate in the armed robberies and false imprisonments of Smith and Gardner.
Regarding the other crimes (the kidnapping of Smith and the theft of Gardner’s car),
she claimed that her participation was the result of being coerced by Ulysse and, to
a lesser extent, Williams.4 She testified that Ulysse often threatened and was violent
toward her and that she believed he would hurt her if she refused to do what he told
her to do during the commission of the crimes. Based upon this evidence, the trial
court instructed the jury on the affirmative defense of coercion during its jury charge
at the end of the trial.
4
See OCGA § 16-3-26 (coercion).
8
The jury found the Appellant guilty beyond a reasonable doubt on all of the
charges, and the court sentenced her to 30 years of imprisonment, to serve 12, with
the balance on probation. The Appellant filed a motion for new trial, which the court
denied after conducting a hearing. This appeal followed.
On appeal from a criminal conviction, we view the evidence in the
light most favorable to the verdict and an appellant no longer enjoys the
presumption of innocence. This Court determines whether the evidence
is sufficient under the standard of Jackson v. Virginia, [5] and does not
weigh the evidence or determine witness credibility. Any conflicts or
inconsistencies in the evidence are for the jury to resolve. As long as
there is some competent evidence, even though contradicted, to support
each fact necessary to make out the State’s case, we must uphold the
jury’s verdict.6
With these guiding principles in mind, we turn now to the Appellant’s specific claims
of error.
1. The Appellant contends that there was insufficient evidence to prove that she
was guilty beyond a reasonable doubt of committing the armed robberies of Smith
and Gardner. Specifically, the Appellant argues that there was no evidence that she
5
Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)
(1979).
6
Rankin, 278 Ga. at 705 (additional citations omitted).
9
was actually present in the motel room at the time the armed robberies took place or
that she was aware of or participated in the planning of the armed robberies. She
claims, instead, that she was merely present at the Red Roof Inn during the
commission of those crimes and that such presence is insufficient as a matter of law
to convict her as a party to the crimes.
A participant to a crime may be convicted although he is not the
person who directly commits the crime. A person who intentionally aids
or abets in the commission of a crime or intentionally advises,
encourages, hires, counsels or procures another to commit the crime may
be convicted of the crime as a party to the crime. Mere presence at the
scene is not sufficient to convict one of being a party to a crime, but
criminal intent may be inferred from conduct before, during, and after
the commission of a crime.7
(a) As an initial matter, the Appellant has not offered any argument or authority
in support of an insufficient evidence claim as to her convictions for the kidnapping
7
Huntley v. State, 331 Ga. App. 42, 43 (1) (769 SE2d 757) (2015) (citation and
punctuation omitted). See also OCGA §§ 16-2-6 (The trier of fact may find that a
person acted with criminal intent through “consideration of the words, conduct,
demeanor, motive, and all other circumstances connected with the act” for which the
person is being tried.); 16-2-20 (a), (b) (3) (when a person may be convicted as a
party to a crime).
10
of Smith or the theft of Gardner’s car. Regardless,8 we find that the evidence
presented at trial was legally sufficient for the jury to find her guilty beyond a
reasonable doubt of those crimes.9
(b) As to the armed robberies10 and related false imprisonments11 of Smith and
Gardner that were committed in Room 232 of the motel, the State presented evidence
showing that the Appellant obtained bullets for Ulysse shortly before the crimes
occurred; waited in a car outside the room and acted as a lookout during the armed
robbery of Smith; drove Williams’ car to Smith’s apartment after Ulysse forced Smith
8
See Darst v. State, 323 Ga. App. 614, 617 (1), n. 8 (746 SE2d 865) (2013)
(physical precedent only) (“Because due process requires the existence of sufficient
evidence as to every element of the crime of which a defendant is convicted, the fact
that this issue was not explicitly raised does not prevent us from addressing . . . the
issue at this juncture.”) (citations and punctuation omitted).
9
See OCGA §§ 16-5-40 (a) (“A person commits the offense of kidnapping
when such person abducts or steals away another person without lawful authority or
warrant and holds such other person against his or her will.”); 16-8-2 (“A person
commits the offense of theft by taking when he unlawfully takes . . . any property of
another with the intention of depriving him of the property[.]”).
10
See OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery
when, with intent to commit theft, he or she takes property of another from the person
or the immediate presence of another by use of an offensive weapon[.]”).
11
See OCGA § 16-5-41 (a) (“A person commits the offense of false
imprisonment when, in violation of the personal liberty of another, he arrests,
confines, or detains such person without legal authority.”).
11
to drive there so he (Ulysse) could steal more money and other items; picked up
Ulysse after that robbery; and drove Ulysse, Folds, and Williams back to the Red
Roof Inn. Further, Folds specifically testified that, while she, the Appellant, Ulysse,
and Williams were still in the car after arriving back at the motel, they discussed
robbing Gardner, who was on his way to the motel to have sex with Folds. After this
discussion, the Appellant and Folds walked up to Room 232 and, when Gardner
arrived, Folds gave the Appellant a room key to give to Ulysse and Williams, who
were waiting outside in Williams’ car. The Appellant went down to Williams’ car,
talked with Ulysse and Williams, and again waited in the car as a lookout while the
men committed the armed robbery. Then, while Williams held Gardner at gunpoint
in the motel room, the Appellant followed Ulysse to Gardner’s car and, using the keys
Ulysse stole from Gardner, drove the car away, stopping only after she heard
Williams’ shotgun go off. Finally, after abandoning Gardner’s car in a nearby parking
lot, the Appellant started to escape into a wooded area with Ulysse; ran back to the
motel to see if the police had arrived to investigate the gunshot; waited while Ulysse
disposed of his sweatshirt, hat, and handgun and Gardner’s car keys in the brush; and
then went with Ulysse to the nearby Chevron station, where they were detained by
police officers.
12
The issue of whether the Appellant aided or abetted in the commission of the
armed robberies or even knew about the robberies was a question for the jury to
decide.12 Furthermore, “[a] jury is authorized to believe or disbelieve all or any part
of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence
before it.”13 Given the overwhelming evidence of the Appellant’s conduct before,
during, and after the crimes at issue were committed, the jury was authorized to reject
her testimony regarding her complete ignorance about the crimes and her claim that
she was merely present at the motel while they were being committed.14
Consequently, after viewing the evidence in the light most favorable to the
jury’s verdict,15 we conclude that it was sufficient for the jury to find that the
12
See Huntley, 331 Ga. App. at 43 (1).
13
Lewis v. State, 287 Ga. App. 379, 381 (651 SE2d 494) (2007) (citations and
punctuation omitted). See also Gordon v. State, 329 Ga. App. 2, 4 (1) (763 SE2d 357)
(2014) (The jury determines the credibility of the witnesses and, thus, was authorized
to disbelieve the defense offered by the defendant.).
14
The trial transcript shows that the court gave comprehensive jury instructions
at the end of the trial that included, inter alia, charges on mere presence and party to
a crime.
15
See Rankin, 278 Ga. at 705.
13
Appellant was guilty beyond a reasonable doubt as a party to the crimes of armed
robbery and false imprisonment as charged in the indictment.16
2. The Appellant contends that her trial counsel provided ineffective assistance
when he failed to call an expert on “Battered Person Syndrome” (“BPS”) to testify on
her behalf at trial or, alternatively, for failing to file a motion asking the court to
provide funds to hire an expert witness.
In order to prevail on a claim of ineffective assistance of counsel,
a criminal defendant must show that counsel’s performance was
deficient and that the deficient performance so prejudiced the client that
there is a reasonable likelihood that, but for counsel’s errors, the
16
See Buruca v. State, 278 Ga. App. 650, 653 (1) (629 SE2d 438) (2006) (The
evidence, although circumstantial, was sufficient for the jury to find that the
defendant was the “getaway” driver who assisted others in committing an armed
robbery and, as a result, to convict him as a party to the crime, noting that the jury
“heard and clearly rejected [the defendant’s] claim that the robbery was a spur of the
moment idea of which he had no knowledge.”) (punctuation omitted); cf. Johnson v.
State, 277 Ga. App. 499, 504-505 (1) (b) (627 SE2d 116) (2006) (In a prosecution for
an armed robbery committed by three masked men, the State presented no eyewitness
identification of the defendant as one of the participants in the crime; no evidence
linking the defendant to the crime scene, the weapon used in the crime, or proceeds
of the crime; no evidence that the defendant received any proceeds from the robbery;
or any other incriminating evidence. Instead, the evidence showed only that the
defendant was an associate of his co-defendants and was with them “at some point
before and after the time of the alleged crimes.” Consequently, this Court held that
there was insufficient evidence to support his conviction, noting that a conviction
cannot be based solely upon mere presence or “guilt by association.”).
14
outcome of the trial would have been different.[17] The criminal
defendant must overcome the strong presumption that trial counsel’s
conduct falls within the broad range of reasonable professional conduct.
[The appellate court accepts] the trial court’s factual findings and
credibility determinations unless clearly erroneous, but [it]
independently appl[ies] the legal principles to the facts.18
“Since an appellant claiming ineffective assistance of counsel must show both
deficient performance and actual prejudice stemming from that deficiency, an
insufficient showing on either of these prongs relieves the reviewing court of the need
to address the other prong.”19
During the hearing on the motion for new trial in this case, the Appellant’s trial
counsel explained that he did not call an expert on BPS to testify at trial because he
had been retained and was being paid by the Appellant’s mother, and she could not
afford to pay for a psychological examination of the Appellant or an expert witness.
Counsel also testified that he did not ask the court for funds to hire an expert witness
17
See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674)
(1984).
18
Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003) (additional
citations and punctuation omitted).
19
Williams v. State, 277 Ga. 853, 858 (6) (a) (596 SE2d 597) (2004) (citation
and punctuation omitted).
15
because he did not think it would be granted, since he had been retained, not
appointed.
Although the Appellant argues that this evidence demonstrates that counsel’s
failure to hire an expert witness constituted deficient performance, it is unnecessary
for this Court to address that issue, because the Appellant has failed to meet her
burden of demonstrating the second prong of the Strickland ineffective assistance
standard, i.e., that she was prejudiced by counsel’s deficient performance.20
In assessing the prejudicial effect of counsel’s failure to call a
witness (whether that failure resulted from a tactical decision, negligent
oversight, or otherwise), a [defendant] is required to make an affirmative
showing that specifically demonstrates how counsel’s failure would
have affected the outcome of his case. The failure of trial counsel to
employ evidence cannot be deemed to be “prejudicial” in the absence of
a showing that such evidence would have been relevant and favorable
to the defendant.21
20
See Williams, 277 Ga. at 858 (6) (a).
21
Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995) (citations
and punctuation omitted). See Ware v. State, 273 Ga. 16, 18 (3) (537 SE2d 657)
(2000) (“Absent a proffer of what the testimony of an expert would have been at trial,
a defendant cannot show that there is a reasonable probability that the outcome of the
trial would have been different had counsel taken the suggested course.”) (citation
and punctuation omitted).
16
In this case, the Appellant’s appellate counsel failed to proffer any expert
witness’ testimony22 to show that, in the expert’s opinion, (1) the Appellant was
suffering from BPS at the time of the crimes and (2) as a result, the Appellant may
have believed that she was in imminent danger of Ulysse’s use of violent force
against her if she did not commit the illegal acts at issue.23 Consequently, because
there is no evidence that the testimony of an expert on BPS would have been relevant
in this case (absent evidence that the Appellant actually suffered from BPS) or that
the testimony would have been favorable to the Appellant’s case, the Appellant
cannot show that there is a reasonable probability that the outcome of the trial would
have been different if counsel had called such an expert witness at trial.24
22
Notably, the record does not show that appellate counsel (who was appointed
after the Appellant’s conviction) filed a motion asking the trial court to approve funds
to hire an expert on BPS to examine the Appellant and testify on her behalf during the
motion for new trial hearing.
23
See OCGA § 16-3-26 (coercion).
24
See Ware, 273 Ga. at 18 (3); Goodwin, 265 Ga. at 615; see also, e.g., Darst,
323 Ga. App. at 622-626 (2) (a) (ii)-(iii), 629-630 (2) (b) (physical precedent only)
(In order to demonstrate that trial counsel’s failure to present the testimony of certain
experts constituted deficient performance that prejudiced the defendant’s case and
probably affected the outcome of the trial, appellate counsel proffered the testimony
of expert witnesses during the motion for new trial hearing, who offered admissible
and relevant opinions on children’s behavior and forensic interviews that would have
rebutted the State’s evidence.).
17
Significantly, all three cases cited by the Appellant in support of her specific
claim of ineffective assistance, Smith v. State,25 Pickle v. State,26 and McLaughlin v.
State,27 are clearly distinguishable from the instant case, because the defendants in
each of those cases proffered the expert testimony at issue in the trial court and
demonstrated that the testimony would have been relevant to the issues, favorable to
the defendant, and otherwise admissible.28 For example, in Smith, the issue was
whether the trial court abused its discretion in excluding the testimony of an expert
on BPS, and trial counsel proffered the expert’s testimony outside of the jury’s
presence.29 The expert testified that she had interviewed the defendant and the
defendant’s family members and had concluded that the defendant suffered from what
was then referred to as “Battered Woman’s Syndrome.”30 Similarly, in Pickle, in order
25
247 Ga. 612, 613-614 (277 SE2d 678) (1981).
26
280 Ga. App. 821 (635 SE2d 197) (2006) (physical precedent only as to
Division 1 (a)).
27
338 Ga. App. 1 (789 SE2d 247) (2016) (physical precedent only).
28
We also note that the relevant portions of both Pickle and McLaughlin are
not binding precedent for this Court, but are, instead, physical precedent only. See
Court of Appeals Rule 33 (a).
29
See Smith, 247 Ga. at 613-614.
30
See id.
18
to show that the trial court erred in excluding the testimony of an expert on BPS and
to perfect the appellate record, trial counsel proffered the testimony of the expert, who
would have explained to the jury how the specific facts of the case “fit within the
cycle of violence” of an abusive relationship.31 Finally, in McLaughlin, in order to
demonstrate that trial counsel’s failure to present the testimony of an expert on BPS
constituted deficient performance that probably affected the outcome of the trial,
appellate counsel proffered the testimony of an expert witness during the motion for
new trial hearing.32 The expert testified that he had examined the defendant; that, in
his opinion, she suffered from BPS at the time she committed the offense at issue; and
that he would have testified at trial about how the syndrome influences a person’s
perceptions and reactions to situations.33
Because the Appellant in this case failed to proffer the testimony of an expert
on BPS and, as a result, failed to meet her burden of demonstrating prejudice that
31
See Pickle, 280 Ga. App. at 823 (1) (a).
32
See McLaughlin, 338 Ga. App. at 8-9.
33
See id.
19
arose from counsel’s failure to call the expert at trial, it necessarily follows that she
cannot prevail on her claim of ineffective assistance of counsel.34
3. The Appellant argues that the trial court erred in imposing a felony sentence
on her conviction for theft by taking of a motor vehicle, which was based on her act
of driving Gardner’s 2002 Honda Accord away from the motel shortly after Ulysse
robbed him and took his keys. She argues that the State failed to prove that the fair
market value of Gardner’s car was more than $1,500 at the time the theft was
committed.
Under OCGA § 16-8-12 (a) (1) (C), the determination of whether a theft by
taking is classified as a misdemeanor or a felony for sentencing purposes is whether
the fair market value of the stolen property was more than $1,500 but less than $5,000
at the time of the crime.35 Thus, the trial court was only authorized to sentence the
Appellant for felony theft by taking if the State presented sufficient evidence for the
34
See Ware, 273 Ga. at 18 (3); Goodwin, 265 Ga. at 615-616.
35
See Williams v. State, 328 Ga. App. 898, 900 (1) (763 SE2d 280) (2014); see
also Partin v. State, 302 Ga. App. 589, 590 (692 SE2d 32) (2010) (“The proper
measure of value [in a theft by taking case] is the fair cash market value either at the
time and place of the theft or at any time during the receipt or concealment of the
property.”) (punctuation and footnote omitted).
20
jury to find that, at the time the Appellant stole Gardner’s car, the car was worth at
least $1,500.01.36
Although Gardner never testified about how much his 2002 Honda Accord cost
when it was purchased as a “certified pre-owned” car in 2009, he did testify that he
would not sell it for less than $1,500 at the time of the Appellant’s trial. Gardner
testified that, at the time the Appellant stole his car, there was nothing mechanically
wrong with it and it had less than 200,000 miles on the odometer, but it did have a
dent in the right front fender. Gardner also stated that, a few months after the April
2015 armed robbery, his car had been damaged in an accident, and it cost $4,000 to
repair it. In addition, the State showed the jury what the car actually looked like at the
time of the theft by presenting photographs of the car and a surveillance tape of the
Red Roof Inn parking lot.37
While it is true that evidence of purchase price, standing alone, is
insufficient to establish stolen property’s value, cost price of an item
coupled properly with other evidence such as a showing of the condition
of the item at the time of purchase and at the time its value is in issue
36
See OCGA § 16-8-12 (a) (1) (C); Partin, 302 Ga. App. at 590.
37
The trial transcript shows that the court instructed the jury that the State had
the burden of proving the fair market value of Gardner’s car beyond a reasonable
doubt and that its verdict should include its finding as to the car’s value.
21
may be admitted as an element upon which an opinion may be formed
as to the item’s value. Direct proof of value is not essential in
prosecutions for theft by taking but proof of value may be shown by
inference.38
In this case, the testimony Gardner provided in regard to the value of his car
is analogous to that provided by the victim in Wilson v. State.39 In Wilson, the
victim’s television, stereo, speakers, handbags, and comforter were stolen.40 While
testifying as to the value of each item, the victim also provided the court with the
condition each item was in at the time of the theft.41 This Court concluded that the
victim’s testimony as to the age and condition of the stolen items, coupled with the
original cost of each item, provided a basis for her opinion that the value of the stolen
items exceeded the minimum value to authorize a felony sentence.42
38
Wilson v. State, 304 Ga. App. 743, 747 (1) (c) (698 SE2d 6) (2010)
(punctuation and footnotes omitted).
39
304 Ga. App. at 746-747 (1) (c).
40
See id.
41
See id.
42
See id. at 747 (1) (c); see also OCGA § 24-14-8 (“The testimony of a single
witness is generally sufficient to establish a fact.”).
22
Similarly, we find that there was sufficient evidence to support the jury’s
conclusion that the fair market value of the 2002 Honda Accord was more than
$1,500. Consequently, the trial court did not err in sentencing the Appellant for a
felony on her conviction for theft by taking.
Judgment affirmed. Miller, P. J., and Doyle, J., concur.
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