Citation Codes

Equivalent Citations

citation codes

Docket Number

59942, 60144.

Attorney(S)

Daniel Kane, for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Margaret V. Lines, Assistant District Attorneys, for appellee.

Judges

CARLEY, Judge.

See more information ...

Smart Summary

SAPP v. THE STATE — Court of Appeals of Georgia (July 14, 1980)

Dockets: 59942, 60144. Trial Court: Fulton Superior Court (Judge McKenzie). Counsel noted in opinion: Daniel Kane for appellant; Lewis R. Slaton, District Attorney, Joseph J. Drolet and Margaret V. Lines, Assistant District Attorneys, for appellee.

Factual and Procedural Background

Appellant was convicted of robbery by a jury in Fulton Superior Court. He appealed, asserting that the trial court erred in denying his motion for new trial based on the general grounds (arguing the verdict was against the weight of the evidence) and in failing, without request, to charge the jury on the defense of alibi or alternatively to charge on identification.

The victim testified that while walking to work she passed two men, one of whom was the appellant. The victim said the appellant began walking behind her, asked her at least twice, "Are you afraid of me?," then struck her in the head, snatched her pocketbook, and ran. The area was described as well lighted. Appellant was apprehended within five to ten minutes of the robbery; the victim immediately identified him as the person who snatched her purse and later identified him in court, stating she was "one hundred percent" certain. Appellant testified he was in close proximity to the situs of the crime and heard a "commotion." The appeal presents challenges based on the weight of the evidence and on the omission of particular jury charges.

Legal Issues Presented

Whether the trial court erred in denying appellant's motion for new trial based on the general grounds—that the verdict was against the weight of the evidence.
Whether the trial court erred in failing, without request, to instruct the jury on the defense of alibi, or alternatively, to instruct the jury on identification.

Arguments of the Parties

Appellant's Arguments

He contended that the verdict was "decidedly and strongly against the weight of the evidence" and that the trial court therefore erred in denying his motion for new trial on the general grounds.
He argued that the trial court erred in failing to instruct the jury on the defense of alibi (asserting that alibi constituted his sole defense), relying on prior authority such as Pepper v. State, and that failure to charge on alibi without request was reversible error. Alternatively, he argued that the court should have charged the jury on identification.

The opinion does not contain a detailed account of appellee's separate or opposing arguments beyond the court's summary treatment of the record and applicable law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ridley v. State, 236 Ga. 147 (223 S.E.2d 131) (1976)	That weight-of-the-evidence claims resolved by the trial court in ruling on a motion for new trial will not be entertained on appeal.	The court invoked Ridley to refuse to reweigh evidence on appeal and to decline to entertain appellant's general-grounds complaint about the weight of the evidence.
Davis v. State, 151 Ga. App. 222 (259 S.E.2d 207) (1979)	The principle that appellate courts determine only whether there is sufficient evidence to support the jury's verdict.	The court cited Davis to explain that its review is limited to sufficiency of the evidence rather than reweighing credibility or conflicting evidence.
Watson v. State, 13 Ga. App. 181 (78 S.E. 1014) (1913)	Authority supporting the sufficiency of evidence to uphold a conviction when the facts permit a rational trier of fact to find guilt beyond a reasonable doubt.	The court relied on Watson among other cases to conclude the evidence was clearly sufficient to support the verdict.
Webb v. State, 82 Ga. App. 543 (61 S.E.2d 542) (1950)	Related authority cited in support of the sufficiency of the evidence standard.	The court cited Webb as part of its conclusion that the evidence supported the jury's verdict.
Jackson v. Virginia, 443 U.S. 307 (99 S. Ct. 2781, 61 L.Ed.2d 560) (1979)	The federal standard that a conviction must be supported by evidence such that any rational trier of fact could find guilt beyond a reasonable doubt.	The court applied Jackson to state that, under that standard, the evidence here was sufficient to support the verdict.
Fisher v. State, 151 Ga. App. 93 (258 S.E.2d 920) (1979)	State appellate authority cited in connection with the sufficiency-of-evidence inquiry.	The court cited Fisher along with Jackson to support its sufficiency determination.
Pepper v. State, 133 Ga. App. 1 (209 S.E.2d 699) (1974)	Cited by appellant as authority that where alibi is the sole defense, failure to charge on alibi without request may be reversible error.	The court acknowledged Pepper as part of appellant's argument but rejected the contention because the evidence did not authorize an alibi charge.
Cooper v. State, 143 Ga. App. 246 (237 S.E.2d 715) (1977)	Authority holding omission of an alibi charge is not error when the evidence does not show impossibility of the defendant's presence at the scene.	The court applied Cooper to conclude omission of an alibi charge was not error because the evidence did not establish impossibility of presence.
Patrick v. State, 245 Ga. 417 (7) (265 S.E.2d 553) (1980)	Similar authority that omission of an alibi charge is not error absent evidence showing impossibility of presence.	The court cited Patrick in support of its conclusion that alibi was not authorized by the evidence, so no alibi charge was required.
Simmons v. State, 149 Ga. App. 830 (256 S.E.2d 79) (1979)	Another case supporting the proposition that omission of an alibi charge is not error when the evidence fails to show impossibility of presence.	The court referenced Simmons as part of the line of cases holding an alibi charge unnecessary where the evidence does not establish impossibility of presence.
Gunter v. State, 155 Ga. App. 176 (3) (1980)	Authority that a trial court is not required to give an alibi charge when such a charge is not authorized by the evidence.	The court cited Gunter to support its conclusion that, despite alibi being appellant's sole defense, an alibi charge was unnecessary because the evidence did not authorize it.
Riggs v. State, 31 Ga. App. 568 (121 S.E. 142) (1923)	Early authority for the proposition that an alibi charge is not required when not authorized by the evidence.	The court cited Riggs alongside Gunter to support its view that no alibi instruction was required here.
Knight v. State, 133 Ga. App. 808 (212 S.E.2d 464) (1975)	Authority that a trial court need not give a separate identification charge when it has properly instructed that the offense must be proved beyond a reasonable doubt.	The court cited Knight to justify its refusal to require a separate charge on identification, noting the judge emphasized the necessity of proving the offense beyond a reasonable doubt.
Heard v. State, 141 Ga. App. 666 (234 S.E.2d 83) (1977)	Similar authority that a separate identification charge is unnecessary when the jury has been properly instructed on proof beyond a reasonable doubt.	The court relied on Heard for the same proposition and applied it to conclude no separate identification instruction was required.

Court's Reasoning and Analysis

The court's analysis proceeded in discrete steps, each tied directly to the record and to prior authority cited in the opinion.

Weight-of-evidence/general grounds: The court began by noting that appellant's contention that "the verdict is decidedly and strongly against the weight of the evidence" had been previously considered and rejected by the trial judge in ruling on the motion for new trial. Citing Ridley v. State, the court explained it will not entertain reweighing the evidence on appeal, and citing Davis v. State, the court reiterated that appellate review is limited to whether there is sufficient evidence to support the verdict.
Sufficiency of the evidence: The court summarized the key testimonial and circumstantial facts (the victim's detailed identification, the well-lighted area, appellant's apprehension within five to ten minutes, and the victim's in-court positive identification). Relying on Watson, Webb, Jackson v. Virginia, and Fisher, the court concluded that the evidence was clearly sufficient such that any rational trier of fact could have found appellant guilty beyond a reasonable doubt. Accordingly, the court held the first enumeration of error (general grounds) was without merit.
Alibi instruction: The court stated the statutory definition of alibi (Code Ann. § 38-122) as involving impossibility of presence at the scene at the time of the offense. It observed that appellant's own testimony placed him in close proximity (able to hear a "commotion") and that he was found and arrested near the scene within minutes. Relying on Cooper, Patrick, and Simmons, the court concluded that the evidence did not show the impossibility of the appellant's presence at the scene; therefore, the omission of an alibi charge was not error. The court further cited Gunter and Riggs to emphasize that, even if alibi was appellant's sole defense, a charge on alibi is not required unless authorized by the evidence.
Identification charge: The court addressed appellant's alternative argument that the trial court should have instructed the jury on identification. It concluded that the trial judge had properly stressed the necessity of proving the offense beyond a reasonable doubt; under Knight and Heard, this made a separate identification charge unnecessary. For that reason, the court found no error in omitting a separate identification instruction.

Holding and Implications

Judgment affirmed.

Implications: The direct effect of the decision is that appellant's robbery conviction and the trial court's rulings (denial of the motion for new trial on general grounds and refusal to give alibi or separate identification charges) are affirmed. The opinion does not announce a new rule of law; it applies existing authority to the record and expressly states that no alibi instruction was required because the evidence did not authorize it, and no separate identification instruction was required because the judge had properly instructed on proof beyond a reasonable doubt.

Opinion by Judge Carley; Quillian, P. J., and Shulman, J., concur. Submitted May 13, 1980; Decided July 14, 1980; Rehearing denied July 31, 1980.

Show full summary ...

SAPP v. THE STATE (two cases).

CARLEY, Judge.

Appellant was convicted of robbery after a jury trial. On appeal he contends the trial court erred in denying his motion for new trial based on the general grounds and in failing to charge the jury on alibi or, in the alternative, on identification.

1. Appellant's argument that "the verdict is decidedly and strongly against the weight of the evidence" has previously been considered and rejected by the trial judge in ruling upon the motion for new trial and will not be entertained by this court on appeal. Ridley v. State, 236 Ga. 147 ( 223 S.E.2d 131) (1976). The weight of the evidence is for the jury and the trial court in ruling upon the general grounds. The appellate courts undertake only to determine if there is sufficient evidence to support the verdict of the jury. Davis v. State, 151 Ga. App. 222 ( 259 S.E.2d 207) (1979).

The victim testified that, while walking to work, she passed two men — one of them being the appellant. The victim further testified that the appellant started walking behind her and asked her, at least two times, "Are you afraid of me?" and then hit her in the head, snatched her pocketbook, and ran. There was evidence that the area in which the offense occurred was well lighted and that appellant was apprehended within five to ten minutes of the robbery and that the victim immediately identified appellant as the person snatching her purse. Furthermore, the victim identified the appellant in the courtroom and testified she was "one hundred percent" positive that he was the perpetrator of the crime.

The evidence here is clearly sufficient to support the verdict. Watson v. State, 13 Ga. App. 181 ( 78 S.E. 1014) (1913); Webb v. State, 82 Ga. App. 543 ( 61 S.E.2d 542) (1950). Any rational trier of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) (1979); Fisher v. State, 151 Ga. App. 93 ( 258 S.E.2d 920) (1979). Therefore, appellant's first enumeration of error is without merit.

2. Appellant also asserts that the trial court erred in failing to instruct the jury, without a request, on the defense of alibi or, in the alternative, on identification. Citing Pepper v. State, 133 Ga. App. 1 ( 209 S.E.2d 699) (1974), and other cases, it is argued that alibi constituted appellant's sole defense and, thus, failure to charge thereon, even without request, was reversible error.

"Alibi, as a defense, involves the impossibility of the accused's presence at the scene of the offense at the time of its commission; and the range of the evidence, in respect to time and place, must be such as reasonably to exclude the possibility of presence." Code Ann. § 38-122. Appellant, by his own testimony in the instant case, placed himself in such close proximity to the situs of the crime that he was able to hear a "commotion." Furthermore, the evidence is clear that appellant was found and arrested near the scene of the offense and within minutes of its commission.

"The evidence, even giving every favorable inference to the defendant's version of the events, failed to show the impossibility of his presence at the scene of the offense. Hence, the omission of a charge on the law of alibi was not error. [Cits.]" Cooper v. State, 143 Ga. App. 246 ( 237 S.E.2d 715) (1977); Patrick v. State,, 245 Ga. 417 (7) ( 265 S.E.2d 553) (1980); Simmons v. State, 149 Ga. App. 830 ( 256 S.E.2d 79) (1979). Notwithstanding the fact that alibi constituted appellant's sole defense, the trial court was not required to give a charge thereon since it was not authorized by the evidence. See Gunter v. State, 155 Ga. App. 176 (3) (1980); Riggs v. State, 31 Ga. App. 568 ( 121 S.E. 142) (1923).

Also, the trial court is not required to charge the jury on identification when, as in this case, the judge stressed the necessity for the offense charged to be proved beyond a reasonable doubt. Knight v. State, 133 Ga. App. 808 ( 212 S.E.2d 464) (1975); Heard v. State, 141 Ga. App. 666 ( 234 S.E.2d 83) (1977). Appellant's second enumeration of error is also without merit.

Judgment affirmed. Quillian, P. J., and Shulman, J., concur.

SUBMITTED MAY 13, 1980 — DECIDED JULY 14, 1980 — REHEARING DENIED JULY 31, 1980.

SAPP v. STATE