Scott v

State, 281 Ga. App. 106, 635 S.E.2d 582 (2006). Directed verdict in statutory rape cases. — Trial court did not err in denying a motion for a directed verdict on a charge of statutory rape as the victim’s recantation did not render the evidence against the defendant insufficient because the victim’s prior inconsistent statements concerning the sexual activity was substantive evidence of guilt; further, the prior inconsistent statements, corroborated by statements to others, as well as the defendant’s own testimony that there was a sexual relationship, satisfied the sufficiency of the evidence standard of Jackson v. Virginia, 443 U.S. 307 (1999). Lewis v. State, 278 Ga. App. 160, 628 S.E.2d 239 (2006). Directed verdict in robbery by sudden snatching. — Because the state’s evidence failed to show that the robbery victim was aware that something was being taken before that taking was complete, the defendant was entitled to a directed verdict of acquittal on a robbery by sudden snatching charge; however, given that: (1) the defendant gained entry to a back office by passing through a storage area, and the jury implicitly rejected an argument that the absence of an ‘‘Employees Only’’ sign meant, despite the victim’s testimony to the contrary, that the defendant had permission to enter either the storage area or the office; and (2) the defendant admitted to entering the office without permission, took a cash bag, and reentered the store in a manner intending to hide from view, a burglary conviction was upheld. Smith v. State, 281 Ga. App. 91, 635 S.E.2d 385 (2006). Directed verdict in shoplifting cases. — In defendant’s shoplifting conviction, the trial court did not err by failing to grant a directed verdict of acquittal because, as the defendant claimed, the state failed to exclude every reasonable conclusion from the circumstantial evidence presented; the evidence showed that the defendant was in the lobby of the store when the alarm was triggered, that 17-9-1 the defendant ran, that the defendant was apprehended, that a bag from the store was recovered, and that the bag contained a number of items from the store but no receipt. Smith v. State, 275 Ga. App. 60, 619 S.E.2d 694 (2005). Trial court did not err by denying the defendant’s motion for a directed verdict of acquittal with regard to the defendant’s trial for felony shoplifting because the testimony of the store’s loss prevention officer established each element of the crime and provided sufficient evidence to support the conviction. Parham v. State, 320 Ga. App. 676, 739 S.E.2d 135 (2013). Directed verdict in theft by receiving stolen property case. — Evidence was sufficient to sustain the defendant’s conviction of theft by receiving stolen property in violation of O.C.G.A. § 16-8-7(a) and, thus, the trial court did not err in denying the defendant’s motion for a directed verdict of acquittal, pursuant to O.C.G.A. § 17-9-1, because the defendant’s vehicle was stopped for violating traffic laws, the defendant could not produce a driver’s license or proof of insurance, the personal information the defendant gave conflicted with the information on the identification card, the vehicle the defendant was driving had no vehicle tag, and the rental application found in the glove compartment along with a health insurance application showed that the car was rented to a person other than the defendant as the evidence showed that the defendant knew or should have known that the car the defendant possessed was stolen. Richardson v. State, 275 Ga. App. 320, 620 S.E.2d 522 (2005). Directed verdict in theft by taking case. — Because no evidence was presented that the defendant converted the victim’s funds for the defendant’s own use or cashed the victim’s check and because the state did not exclude every other reasonable hypothesis, the evidence was insufficient to convict the defendant of theft by taking, under O.C.G.A. § 16-8-2; consequently, the trial court erred in denying the defendant’s motion for a directed verdict of acquittal. Hydock v. State, 275 Ga. App. 122, 619 S.E.2d 807 (2005). Trial court did not err in denying the defendant’s motion for a directed verdict 950 because the evidence was sufficient for a rational trier of fact to infer that the defendant acted with criminal intent and to find the defendant guilty of theft by taking in violation of O.C.G.A. § 16-8-2, and whether the defendant intended to deprive the victims of the victims’ property was a question for the trier of fact, who was not required to believe the defendant’s testimony; the manner in which the property was appropriated was irrelevant, and even if the trial court had accepted the defendant’s claim that the defendant lawfully appropriated the trailer, the evidence supported a finding that although the defendant could have had lawful possession of the truck initially, the defendant failed to return the truck, or even provide the victims with the location of the truck upon their demands. Rushing v. State, 305 Ga. App. 629, 700 S.E.2d 620 (2010). Directed verdict on charge of theft by taking. — Defendant’s recent possession of stolen goods, coupled with other evidence linking the defendant with the theft, negated the propriety of a directed verdict of acquittal on a charge of theft by taking. Rautenberg v. State, 178 Ga. App. 165, 342 S.E.2d 355 (1986). Directed verdict in possession of tools for crime cases. — In a prosecution for the possession of tools for the commission of a crime, which was a felony, while the evidence presented against the defendant was sufficient to support the jury’s verdict, because the defendant’s conduct could also have been charged as a misdemeanor offense of possession of a drug related object, pursuant to O.C.G.A. § 16-13-32.2(a) and the rule of lenity, the felony conviction was reversed, and the matter was remanded for a resentencing on the misdemeanor offense; hence, the trial court did not err in denying the defendant’s motion for a directed verdict of acquittal. Washington v. State, 283 Ga. App. 570, 642 S.E.2d 199 (2007). Trial court erred in denying the defendant’s motion for a directed verdict of acquittal because the evidence was insufficient to support the defendant’s conviction for possession of tools for the commission of a crime for lack of evidence showing that body armor was a tool com- 17-9-1 monly used in the commission of attempted armed robbery pursuant to O.C.G.A. § 16-7-20(a). Nyane v. State, 306 Ga. App. 591, 703 S.E.2d 53 (2010), cert. denied, No. S11C0420, 2011 Ga. LEXIS 538 (Ga. 2011). Directed verdict on charge of terroristic threats. — Trial judge did not err in denying the defendant’s motion for a directed verdict of acquittal on a charge of terroristic threats, as due to the implicit nature of the threats against an undercover officer, a reasonable inference of guilt could be found from the evidence; as corroborating evidence existed that proved the incident occurred as alleged, the trial court did not abuse the court’s discretion in allowing the jury to weigh the issue of corroboration and make a conclusion based on the evidence presented. Mendoza v. State, 274 Ga. App. 662, 618 S.E.2d 712 (2005). Because evidence of the defendant’s act of pointing the defendant’s finger like a gun and threatening the victim, along with the use of racial slurs and profanity, was sufficient to support a charge of terroristic threats, the defendant’s conviction was upheld on appeal, supporting the denial of a motion for a directed verdict of acquittal as to that charge; further, as to the state’s evidence in support of the charge, given the equivalence between the words ‘‘ought’’ and ‘‘should,’’ the trial court did not abuse the court’s discretion when the court overruled an objection to the state’s assertion during closing argument that the defendant told the victim, ‘‘I ought to kill you.’’ Self v. State, 288 Ga. App. 77, 653 S.E.2d 787 (2007). Directed verdict in vehicular homicide and DUI cases. — Trial court did not err in denying the defendant’s motions for directed verdict and new trial because the evidence was sufficient to sustain the defendant’s convictions for vehicular homicide and DUI since several witnesses on the scene testified that the defendant was in the driver’s seat of the vehicle immediately after the accident. Hunt v. State, 261 Ga. App. 417, 582 S.E.2d 493 (2003). Directed verdict in voluntary manslaughter cases. — Defendant’s motion for a directed verdict was properly denied as the evidence supported the defendant’s 951 Application (Cont’d) conviction for voluntary manslaughter because: (1) the victim assaulted the defendant, but turned away to leave the scene; (2) after the victim turned away, the defendant shot the victim in the back from two and one-half feet away; (3) the jury could reject the defendant’s justification defense; (4) the defendant was identified as the assailant on the night of the shooting; and (5) the defendant admitted firing a gun at the victim. Nelloms v. State, 273 Ga. App. 448, 615 S.E.2d 153 (2005). Defendant was not entitled to a directed verdict of acquittal on a voluntary manslaughter count predicated on the defendant’s claim of defense of habitation, O.C.G.A. § 16-3-23, because the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of voluntary manslaughter in violation of O.C.G.A. § 16-5-2(a) and to find that the defendant’s stabbing of the victim was not justified in defense of the defendant’s habitation; the jury was authorized to rely upon the defendant’s prior inconsistent statement to the defendant’s relative to conclude that the victim’s entry into the defendant’s apartment was not ‘‘violent and tumultuous,’’ and based upon the eyewitness testimony of a neighbor, the jury also was authorized to find that the victim was unarmed and that deadly force was not necessary for the defendant’s protection. Muckle v. State, 307 Ga. App. 634, 705 S.E.2d 721 (2011). Directed verdict in racketeering crime offenses. — Trial court properly denied a defendant’s motion for a directed verdict with regard to the racketeering charges brought against the defendant for which the defendant was convicted of as the activities that the defendant engaged in involving various codefendants, the abduction of a store manager, and the victim’s murder were sufficiently linked to form a racketeering pattern, but sufficiently distinguishable so that the crimes were not mere single transactions. Overton v. State, 295 Ga. App. 223, 671 S.E.2d 507 (2008), cert. denied, No. S09C0654, 2009 Ga. LEXIS 212 (Ga. 2009). 17-9-1 Defendant’s motion for a directed verdict was properly denied because the defendant strangled the victim, robbed the victim, buried the victim, and then drove the victim’s car for approximately two weeks after the crimes. Shelton v. State, 279 Ga. 161, 611 S.E.2d 11 (2005). Trial court did not err in denying a motion for directed verdict. Loggins v. State, 169 Ga. App. 511, 313 S.E.2d 769 (1984). Verdict of acquittal not demanded. — Although there was no conflict in the evidence, the evidence does not demand a verdict of acquittal if there is evidence from which the jury could infer that the defendant was attempting to take a shotgun without paying for the shotgun. Brown v. State, 160 Ga. App. 285, 287 S.E.2d 278 (1981). Denial of a motion for directed verdict was upheld as there was sufficient evidence to support the verdict, including testimony by an officer identifying the defendant as a passenger in a stolen car and DNA evidence matching blood found on the defendant’s shoes to a victim. Gonzalez v. State, 277 Ga. App. 362, 626 S.E.2d 569 (2006). Trial court did not err when the court denied the defendant’s motion to dismiss based on a purported violation of the defendant’s constitutional right to a speedy trial because the circumstances of the case warranted a finding that the twelve-month, ten-day delay between the defendant’s indictment and the filing of the defendant’s motion to dismiss was not presumptively prejudicial. The defendant was serving a sentence on an unrelated charge in Mississippi when the indictment was returned, a requisition warrant had to be obtained from the Mississippi Governor, which process was initiated within a month of the defendant’s indictment and took three months before the warrant was issued, and the defendant was brought to Georgia two months after the warrant issued and was arraigned approximately two months later. Rogers v. State, 286 Ga. 387, 688 S.E.2d 344 (2010). Trial court properly denied a defendant’s motion under O.C.G.A. § 17-9-1(a) for an acquittal in the defendant’s trial for 952 aiding and abetting a housemate in committing acts of aggravated child molestation against the defendant’s children because there was ample evidence that the defendant acquiesced in and encouraged the acts of child molestation by forcing the children to sleep in the same room with the housemate, although the children objected. Valentine v. State, 301 Ga. App. 630, 689 S.E.2d 76 (2009). Based on the evidence presented by the state from the eyewitnesses and the medical examiner, even if the defendant’s act of beating the decedent victim was not the direct cause of death, given that it either materially contributed to the death or materially accelerated the death, the defendant was not entitled to an acquittal. Jones v. State, 281 Ga. 758, 642 S.E.2d 816 (2007). Trial court did not err in denying the defendant’s motion for directed verdict of acquittal after a jury convicted the defendant of two counts of cruelty to children in violation of O.C.G.A. § 16-5-70(b) because the state did not fail to prove that the defendant used a bat and a belt as stated in the indictment; both victims, who were the defendant’s adopted children, testified that the defendant beat the victims with a belt and a bat and that the beatings occurred when the victims did not complete the exercises that the defendant required the victims to do on a daily basis. Dinkler v. State, 305 Ga. App. 444, 699 S.E.2d 541 (2010), overruled on other grounds, Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012). Superior court did not abuse the court’s discretion in denying the defendant’s motion for discharge and acquittal because the defendant’s right to a speedy trial was not violated; the defendant did not assert the right until the defendant filed the motion, which was approximately 48 months from the time of the indictment, the defendant did not maintain that the defendant suffered any extraordinary anxiety or concern due to the delay in trial, and the defendant made no challenge to the finding of the defense’s failure to show diligence in attempting to locate witnesses, i.e., that the witnesses were unavailable to the defendant. Williams v. State, 290 Ga. 24, 717 S.E.2d 640 (2011). 17-9-1 Defendant’s claim that the defendant was entitled to a directed verdict based on a fatal variance between the names of the victims in the indictment and the evidence failed because the state presented sufficient evidence to allow a reasonable trier of fact to conclude the names in the indictment referred to the victims present during the home invasion. Thompson v. State, 320 Ga. App. 150, 739 S.E.2d 434 (2013). Because there was evidence, including blood that was a match for the defendant’s DNA on the inside of the display case, showing that the defendant was connected to the crimes of robbery and theft by receiving, the trial court did not err in denying the defendant’s motion for a directed verdict of acquittal. Watson v. State, 337 Ga. App. 16, 785 S.E.2d 656 (2016). Proof of conspiratorial acts on dates not alleged in indictment. — Defendants were not entitled to directed verdicts of acquittal even though the state’s evidence failed to prove that a conspiracy took place within the time frame alleged in the indictment since the indictment did not allege that the dates of the offense were material, and under these circumstances the state was entitled to offer any evidence proving commission of the conspiratorial acts on any date within the statute of limitations. Ledesma v. State, 251 Ga. 885, 311 S.E.2d 427, cert. denied, 467 U.S. 1241, 104 S. Ct. 3510, 82 L. Ed. 2d 819 (1984). Directed verdict proper when inadequate link between arson conspiracy and murder. — Conspiracy to commit arson, without more, does not naturally, necessarily, and probably result in the murder of one coconspirator by another; thus, the defendant was improperly convicted of murder and a motion for a directed verdict of acquittal should have been granted because although the defendant was guilty of conspiracy to commit arson, the subsequent murder of one coconspirator by another to keep the murdered coconspirator quiet was not reasonably foreseen as a necessary, probable consequence of the arson conspiracy. Everritt v. State, 277 Ga. 457, 588 S.E.2d 691 (2003). 953 Application (Cont’d) Directed verdict in financial transaction card theft case. — Trial court did not err in denying the defendant’s motion for a directed verdict on the charge of financial transaction card theft because the victim was in constructive possession of the victim’s credit card, which was sufficient to establish the allegation set forth in the accusation; because the victim was the cardholder on the account, the victim had the authority to exercise dominion and control over the credit card that had been issued in the victim’s name. Amaechi v. State, 306 Ga. App. 333, 702 S.E.2d 680 (2010). Directed verdict in driving without a valid license case. — Because the charge of being a habitual violator operating a vehicle without a valid driver’s license, O.C.G.A. § 40-5-58(c)(1), demanded a verdict of acquittal as a matter of law, the trial court erred by denying the defendant’s motion for a directed verdict; the defendant was not driving without a valid driver’s license because the arresting officer testified that the defendant had a probationary driver’s license on the day of the arrest. Murray v. State, 315 Ga. App. 653, 727 S.E.2d 267 (2012). Practice and Procedure Ruling on motion after jury dispersed. — Defendant failed to show any harm so as to justify reversal after the trial court reserved a ruling on a motion for a directed verdict of acquittal and ruled upon the motion after the jury had dispersed. Ballantine v. State, 194 Ga. App. 560, 390 S.E.2d 887, cert. denied, 194 Ga. App. 911, 390 S.E.2d 887 (1990). There is no prohibition on the court’s reservation of a final ruling on a motion for a directed verdict of acquittal and the court rendering a decision after the jury returns a verdict and is dispersed. State v. Seignious, 197 Ga. App. 766, 399 S.E.2d 559 (1990). Venue properly established. — Trial court did not err in denying the defendant’s motion for directed verdict of acquittal after a jury convicted the defendant of two counts of cruelty to children in 17-9-1 violation of O.C.G.A. § 16-5-70(b) because venue was properly established by the state; one of the victims testified that the victim and the victim’s sister lived about three blocks from the courthouse in which the trial was held, and the defendant testified that the defendant had been living in the same home for 14 years and that the defendant and the defendant’s spouse had attempted to adopt in the county where the trial was held. Dinkler v. State, 305 Ga. App. 444, 699 S.E.2d 541 (2010), overruled on other grounds, Stuart v. State, 318 Ga. App. 839, 734 S.E.2d 814 (2012). Trial court did not err in denying the defendant’s motion for a directed verdict because the testimony, taken as a whole, was sufficient evidence from which the jury could conclude beyond a reasonable doubt that the child molestation was committed in Fayette County; during trial and the victim’s forensic interview, the victim described that the molestation incident occurred during a visit to the victim’s aunt’s residence, which was located in Fayette County, Georgia, and two detectives testified that the referenced visit and molestation incident took place at a residence in Fayette County. Hargrave v. State, 311 Ga. App. 852, 717 S.E.2d 485 (2011). Trial court erred in granting the defendant’s motion for directed verdict after the judgment of conviction had been entered because the trial court’s reservation of a ruling upon the motion was entered after the trial court imposed sentencing and entered the court’s judgment of conviction; therefore, the decision on the motion came too late and was procedurally barred. State v. Canup, 300 Ga. App. 678, 686 S.E.2d 275 (2009). Directed verdict granted as to some items in the accusation but not as to all. — Defendant’s substantial rights were not affected and the trial court did not err in granting a directed verdict as to some items in the accusation of shoplifting, but not as to all, as the defendant was not surprised, and the defendant could not be prosecuted later for the same offense. Smith v. State, 275 Ga. App. 60, 619 S.E.2d 694 (2005). 954 Trial judge’s interruption of defense counsel’s argument of motion for directed verdict, in which the judge stated that the judge was aware of counsel’s reasons for the motion, did not constitute harmful error; there was sufficient evidence to find the defendant guilty of the offense charged. Morris v. State, 205 Ga. App. 650, 423 S.E.2d 54 (1992). Review of directed verdict motion. — Overruling of a motion for directed verdict of acquittal is reviewable on appeal. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975). Scope of appellate review of denial of directed verdict. — Supreme Court will hold that the trial court did not err in failing to direct a verdict of acquittal if the Supreme Court cannot say that there was no conflict in the evidence and the evidence demanded a verdict of acquittal. Conger v. State, 250 Ga. 867, 301 S.E.2d 878 (1983); Horton v. State, 194 Ga. App. 797, 392 S.E.2d 259, cert. denied, 194 Ga. App. 911, 392 S.E.2d 259 (1990). Although the denial of a motion for a directed verdict of acquittal is reviewable on appeal, it is the basis for reversal only when the evidence demands a verdict of not guilty. Meade v. State, 165 Ga. App. 556, 301 S.E.2d 912 (1983); Johnson v. State, 165 Ga. App. 773, 302 S.E.2d 626 (1983). Test for determining sufficiency of the evidence. — In light of the test established in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), which holds that evidence to support a criminal conviction must be such that a rational trier of fact could have found the essential elements of a crime beyond a reasonable doubt, that test rather than the ‘‘any evidence’’ test of Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975) is the proper test for a reviewing court to use when the sufficiency of evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for a new trial based upon allegedly insufficient evidence. Humphrey v. State, 252 Ga. 525, 314 S.E.2d 436 (1984). Same test for directed verdict and sufficiency of evidence. — Standard of 17-9-1 review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction; a motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. On appeal, the evidence must be viewed in the light most favorable to the verdict, the defendant no longer enjoys the presumption of innocence, and an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence was sufficient for a conviction. Truitt v. State, 266 Ga. App. 56, 596 S.E.2d 219 (2004). On appeal from overruled motion, all evidence in the case can be considered. — On appeal of the overruling of a motion for directed verdict of acquittal made at the close of the state’s case in chief, the reviewing court can consider all the evidence in the case in determining whether the trial court erred in overruling the motion. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975); Causey v. State, 154 Ga. App. 76, 267 S.E.2d 475 (1980). On appeal from an overruled motion, all evidence in a case can be considered whether overruled at the close of the state’s case or at the conclusion of all evidence. Causey v. State, 154 Ga. App. 76, 267 S.E.2d 475 (1980). Consideration of rebuttal evidence by appellate court. — Defendant prosecuted for the sale of methamphetamine was not entitled to a directed verdict of acquittal due to the state’s failure to prove venue because the state introduced testimony, on rebuttal, establishing that the crime occurred in the county in which the defendant was prosecuted, establishing venue beyond a reasonable doubt, and the appellate court was required to consider this rebuttal evidence when reviewing the denial of the defendant’s motion. Reynolds v. State, 265 Ga. App. 776, 595 S.E.2d 606 (2004). When failure to direct verdict of acquittal or not guilty constitutes error. — It constitutes reversible error for the trial court to refuse to direct a verdict of acquittal if there is absolutely no conflict in the evidence and the verdict of 955 Practice and Procedure (Cont’d) acquittal is demanded as a matter of law. Bethay v. State, 235 Ga. 371, 219 S.E.2d 743 (1975); Sims v. State, 242 Ga. 256, 248 S.E.2d 651 (1978). If the evidence demands a verdict of acquittal, the failure of a trial judge to so direct a verdict is reversible error. Cleveland v. State, 155 Ga. App. 267, 270 S.E.2d 687 (1980). It is only if the evidence demands a verdict of not guilty that it is error for the trial court to refuse to grant a motion for a directed verdict of acquittal. Battle v. State, 155 Ga. App. 541, 271 S.E.2d 679 (1980). Directed verdict motion on constitutional challenge held untimely. — Trial court did not err in denying the defendant’s motion for a directed verdict of acquittal as to the aggravated sexual battery charge, which specifically alleged that O.C.G.A. § 16-6-22.2(b) violated the 17-9-2 equal protection clause of both the Georgia and U.S. Constitutions, as the defendant did not move for a directed verdict until filing a second motion for a new trial, which was considered untimely. Phillips v. State, 284 Ga. App. 224, 644 S.E.2d 153 (2007). Motion not moot by nolle prosequi of charges. — After a trial court in the defendant’s criminal matter entered an order of nolle prosequi regarding criminal charges against the defendant, the defendant’s motion for discharge and acquittal, based on a claim that the trial court failed to comply with the demand for a speedy trial under O.C.G.A. § 17-7-170, should have still been ruled on; accordingly, it was error to find that defendant’s petition for a writ of mandamus, pursuant to O.C.G.A. § 9-6-20, seeking to have the trial court judge rule on the motion for discharge and acquittal, was rendered moot. Davis v. Wilson, 280 Ga. 29, 622 S.E.2d 325 (2005).