Stubbs v. State , 215 Ga. App. 873 ( 1994 )

Per curiam.

Appellant, Freddie Stubbs, was convicted of burglary, possession of tools for the commission of a crime and a misdemeanor traffic charge of operating a vehicle with an improper tag and appeals from that judgment.

The evidence showed that at approximately 6:00 a.m., a police officer on patrol noticed a parked car approximately 50 feet away from a furniture store. The police officer testified he saw a man standing beside the car holding a television set. When the officer approached the parked car, the man put the television down and ran away. The officer did not pursue the fleeing man (later identified as Bryant), but approached the parked car and asked Stubbs to get out. Shortly thereafter, the burglar alarm from the furniture store sounded. The officer found a metal bar and a padlock with pry marks on it in the back of Stubbs’s car. The owner of the furniture store testified that the padlock was the one used to lock the store’s door and identified the television as having come from her store.

Stubbs testified that he had been out all night drinking and playing cards and the combination of alcohol and his prescription medication made him feel sick as he was driving home. He therefore pulled over to get himself together and had a small blackout. He was awakened by Bryant knocking on the windows of his car asking if he was all right. Stubbs testified that Bryant told him he was trying to get into a boarding room for a week and that he had a television he could sell. Bryant then walked towards the building to get the television, and when he returned with it, the police officer drove up. Stubbs stated that when the officer approached, Bryant threw something into the back of his car and ran off down the street.

1. Stubbs contends the trial court erred, even in the absence of a request, in failing to charge the jury on the law of circumstantial evidence as required by OCGA § 24-4-6. That Code section provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” For the reasons set forth in the opinions below, we reject Stubbs’s argument.

2. In his second enumeration of error, Stubbs claims that the trial court erred in submitting the case to the jury since the evidence presented was not sufficient to authorize conviction. The standard of reviewing the denial of a motion for directed verdict is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994). Here, we find that a rational trier of fact could find from the evidence adduced at trial proof of Stubbs’s guilt beyond a reasonable doubt.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews, Johnson and Smith, JJ., concur specially. Pope, C. J., McMurray, P. J., and Blackburn, J., concur in part and dissent in part. Ruffin, J., dissents.