Dejonquavius Shine v. State

FOURTH DIVISION
DILLARD, P. J.,
MERCIER and PINSON, 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.
https://www.gaappeals.us/rules
January 14, 2022
In the Court of Appeals of Georgia
A21A1580. SHINE v. THE STATE.
DILLARD, Presiding Judge.
Following trial, a jury convicted Dejonquavius Shine on charges of theft by
taking, felony fleeing or attempting to elude a police officer, theft by receiving, and
misdemeanor obstruction of an officer. On appeal, Shine contends that the evidence
was insufficient to support his three felony convictions. Nevertheless, for the reasons
set forth infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,1 the record shows that
in 2014, Yuri Rusev and his wife, Nataliya, who resided in Douglasville, owned a
2006 S500 black Mercedes, which they decided to sell and then listed on Craigslist
and Autotrader for $19,500. A few weeks later, Yuri received a text message from a
1
See, e.g., Libri v. State, 346 Ga. App. 420, 421 (816 SE2d 417) (2018).
person with a Columbus, Georgia mobile number, who expressed interest in
purchasing the vehicle. On May 2, 2014, the same prospective buyer again texted
Yuri and asked if he could see the car that afternoon. Although Yuri was going to be
at work, he agreed and told Nataliya that the prospective buyer was on the way.
Later that afternoon, a new, burgundy Dodge Charger parked on the street near
the Rusevs’ house. And alerted by a text from Yuri that the prospective buyer had
arrived, Nataliya went outside, saw the Charger, and could tell that it had several
occupants. As Nataliya approached, a man later identified as Shine, wearing dark
colored jeans, a dark colored shirt, and a hat with “New Orleans” written on it,
approached her. The two talked about the Mercedes for several minutes, at which
point Shine asked Nataliya if he could take it for a test drive. She agreed, handed him
the keys, but told him she needed to lock her house first. But shortly after turning to
walk toward her front door, Nataliya heard tires squealing and turned back to see both
the Mercedes and Charger speeding away. Immediately, she called 911 to report the
theft.
Meanwhile, the two vehicles—with Shine driving the Mercedes and his
accomplices, Trequarious Hester, Javari Roberson, and two juveniles (A. H. and B.
M.) in the Charger—left the Rusevs’ neighborhood and turned on to Chapel Hill
2
Road, a busy state highway. Within minutes, a Douglasville police officer—who
received a dispatch regarding the stolen vehicle and was already patrolling in the
area—spotted both the Mercedes and Charger traveling in the opposite direction.
Because traffic was heavy, the officer could not turn around quickly. And as he
attempted to do so, he saw both vehicles accelerate and swerve into oncoming traffic,
obviously attempting to flee. But even after turning around, the officer could not keep
pace with the suspects due to the traffic and his unwillingness to drive on the wrong
side of the road. Then, the officer heard on radio dispatch that both vehicles were
spotted heading westbound on Interstate 20, and so he proceeded in that direction.
Meanwhile, two other Douglasville police officers spotted the fleeing vehicles
entering I-20 and began pursuing them. After a few minutes, the Mercedes exited the
interstate at Highway 5, but the Charger continued fleeing on I-20, and the two
officers continued pursuing the latter. Moments later, one of the officers initiated a
Precision Immobilization Technique (“PIT”) maneuver, causing the Charger to crash
into a guardrail. All four of the Charger’s occupants then exited the vehicle, but
officers immediately tased Roberson and arrested him. Hester and the two juveniles
fled into some nearby woods, but not before an officer fired at A. H., who was armed,
and wounded him. Not long after, Hester, A. H., and B. M. were apprehended in a
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neighborhood on the other side of the woods when their attempt to ask a resident if
they could use a phone to call for a ride, instead resulted in the resident calling the
police. Additionally, upon searching the Charger and examining its VIN number,
officers determined the vehicle had been stolen from a Columbus dealership in a car-
jacking five days earlier.
As the pursuit of the Charger was concluding, officers received a radio dispatch
indicating that the Mercedes had been found abandoned in a Walmart parking lot
located on Highway 5. Surveillance footage from the Walmart showed that a man
with a hat exited the vehicle and fled into some nearby woods. Subsequently, officers
began searching the area with the assistance of a K-9 unit. The search continued for
several hours, and around 7:30 p.m., a detective with the Douglasville Police
Department noticed a man matching Shine’s description walking in the opposite
direction on the side of the road near the Walmart. The detective turned his vehicle
around and approached the man as he walked through the parking lot of a fast-food
restaurant. But when he lowered his window and asked if he could speak with him,
the man ran in to one side of the restaurant and exited the other. By that time, several
other officers arrived in the area, and, thus, moments after the man—who was in fact
4
Shine—exited the restaurant, a K-9 officer who spotted him released his dog,
resulting in Shine’s arrest.
The State charged Shine, via indictment, with one count each of theft by taking,
fleeing or attempting to elude a police officer, theft by receiving, and misdemeanor
obstruction of an officer. The case then proceeded to trial, during which the State
presented the aforementioned evidence, including the fact that Nataliya identified
Shine in a photographic lineup as the man who stole the Mercedes. The State also
presented evidence linking the text messages sent to Yuri, inquiring about the
Mercedes, to a pre-paid disposable cell phone in Shine’s possession at the time of his
arrest. Additionally, the State presented evidence that Shine had previously been
convicted of theft by receiving of an automobile after leading police on a high-speed
chase. Finally, both Hester and B. M. testified for the State and claimed it was Shine’s
plot to steal a car and split the proceeds with all of them. Both also testified that Shine
drove the Charger from a house in Macon, where they all met, to Douglasville, and
that after Shine got in the Mercedes, Hester drove the Charger. Hester further testified
that Shine had been driving the Charger for several days before the trip to
Douglasville.
5
After the State rested, Roberson—who had already pleaded guilty to several
offenses arising out of the theft—testified for the defense and claimed that Shine was
not involved in the plot to steal the Mercedes. Rather, Roberson testified that Torrell
Pedroso—a local gang-leader who went by “TQ”—was the person who drove to
Douglasville and stole the Mercedes. But on cross-examination, Roberson admitted
that during his plea hearing, he implicated Shine. Next, Shine testified in his own
defense and also claimed that he was not involved in stealing the Mercedes,
explaining that he was arrested in Douglasville only because he had driven there after
TQ and Roberson called him pleading for a ride. Nonetheless, at the conclusion of the
trial, the jury found Shine guilty on all charges. Shine then filed a motion for new
trial, which the trial court denied after conducting a hearing on the matter. This appeal
follows.
In his sole enumeration of error, Shine challenges the sufficiency of the
evidence identifying him as the perpetrator of the offenses. We disagree.
When a criminal conviction is appealed, the evidence must be viewed in the
light most favorable to the verdict, and the appellant no longer enjoys a presumption
6
of innocence.2 And, of course, in evaluating the sufficiency of the evidence, we “do
not weigh the evidence or determine witness credibility, but only determine whether
a rational trier of fact could have found the defendant guilty of the charged offenses
beyond a reasonable doubt.”3 The jury’s verdict will be upheld, then, so long as there
is “some competent evidence, even though contradicted, to support each fact
necessary to make out the State’s case.”4 Bearing these guiding principles in mind,
we turn to Shine’s specific challenges to the sufficiency of the evidence.
1. Theft by taking. OCGA § 16-8-2 provides that “[a] person commits the
offense of theft by taking when he unlawfully takes or, being in lawful possession
thereof, unlawfully appropriates any property of another with the intention of
depriving him of the property, regardless of the manner in which the property is taken
or appropriated.” And under OCGA § 16-8-1 (3), “property of another” includes
2
See English v. State, 301 Ga. App. 842, 842 (689 SE2d 130) (2010) (noting
that following conviction, an appellant no longer enjoys a presumption of innocence).
3
Jones v. State, 318 Ga. App. 26, 29 (1) (733 SE2d 72) (2012) (punctuation
omitted); see Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d
560) (1979) (noting that the relevant question is, after viewing the evidence in the
light most favorable to the prosecution, could any rational jury found the essential
elements of the crime beyond a reasonable doubt).
4
Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (punctuation
omitted).
7
“property in which any person other than the accused has an interest but does not
include property belonging to the spouse of an accused or to them jointly.”
In this matter, the indictment charged Shine with theft by taking in that he “did
unlawfully take a 2006 Mercedes S500, the property of Nataliya Rusev, with a value
greater than five thousand dollars ($5,000.00) or more, with the intent to deprive said
owner of said property. . . .” Additionally, as discussed supra, the State presented
evidence that Shine contacted Yuri ostensibly about buying his Mercedes but then
took the vehicle from Nataliya without her permission before leading police officers
on a high-speed chase. And importantly, Nataliya identified Shine in a photo lineup
as the person who took the Mercedes, and police officers arrested Shine close to
where the vehicle was abandoned. Given these circumstances, the evidence was
sufficient to support Shine’s conviction on the theft-by-taking charge.5
5
See Jones v. State, 303 Ga. 496, 499 (II) (813 SE2d 360) (2018) (holding that
evidence identifying defendant as driving away from the scene of shooting in victim’s
girlfriend’s vehicle without her permission and despite her attempts to stop him was
sufficient to support defendant’s conviction on theft-by-taking charge); Hammock v.
State, 311 Ga. App. 344, 344-45 (1) (715 SE2d 709) (2011) (concluding that evidence
defendant broke into line at convenience-store checkout, in front of victim, and left
store; that victim exited store a short time later to find her car missing; and that
witnesses then viewed store’s surveillance videotape and identified defendant as the
person who entered the car and drove away with it was sufficient to support
defendant’s conviction on theft-by-taking charge); Ferguson v. State, 307 Ga. App.
232, 233-34 (1) (704 SE2d 470) (2010) (holding that evidence in video surveillance
8
2. Fleeing or attempting to elude a police officer. OCGA § 40-6-395 (a)
provides:
It shall be unlawful for any driver of a vehicle willfully to fail or refuse
to bring his or her vehicle to a stop or otherwise to flee or attempt to
elude a pursuing police vehicle or police officer when given a visual or
an audible signal to bring the vehicle to a stop. The signal given by the
police officer may be by hand, voice, emergency light, or siren. The
officer giving such signal shall be in uniform prominently displaying his
or her badge of office, and his or her vehicle shall be appropriately
marked showing it to be an official police vehicle.
And under OCGA § 40-6-395 (b) (5) (A),
[a]ny person violating the provisions of subsection (a) of this Code
section who, while fleeing or attempting to elude a pursuing police
vehicle or police officer . . . [f]lees in traffic conditions which place the
general public at risk of receiving serious injuries . . . shall be guilty of
a felony punishable by a fine of $5,000.00 or imprisonment for not less
than one year nor more than five years or both.
footage showing person taking victim’s car was sufficient to support identification
of defendant as thief and, thus, his conviction for theft by taking motor vehicle);
Campbell v. State, 275 Ga. App. 8, 9-10 (1) (619 SE2d 720) (2005) (holding that
evidence showing a man matching defendant’s description driving victim’s car out
of the parking lot was sufficient to support conviction on theft-by-taking charge).
9
Here, Count 2 of the indictment charged Shine with the felony level of fleeing
or attempting to elude a police officer, specifically alleging that he “being the driver
of the vehicle, did willfully fail to bring his vehicle to a stop while fleeing and
attempting to elude a pursuing police vehicle, while fleeing in heavy traffic
conditions, which placed the general public at risk of receiving serious injuries . . .
after having been given an audible and visual signal to bring his vehicle to a stop” by
a uniformed police officer in a prominently marked police vehicle. And the evidence
at trial showed that Shine fled from several police officers, despite at least one of the
officers illuminating his blue lights, driving at high speeds through heavy traffic on
a crowded state highway and interstate. In fact, at one point, the evidence showed that
Shine drove on the wrong side of the road into oncoming traffic in order to elude one
of the officers who pursued him. Additionally, the State introduced a video recording
of the chase from one of the pursuing officer’s dashboard camera and played it for the
jury. Accordingly, the evidence was sufficient to support the jury’s guilty verdict and,
therefore, Shine’s conviction on the charge of felony fleeing or attempting to elude
a police officer.6
6
See Alexander v. State, 355 Ga. App. 234, 235-37 (1) (843 SE2d 907) (2020)
(holding that evidence defendant ignored officer’s signals to stop, drove 70 miles per
hour in 30 mile per hour zone, ignored stop signs, passed at least one car, and
10
3. Theft by receiving. Under OCGA § 16-8-7 (a), “[a] person commits the
offense of theft by receiving stolen property when he receives, disposes of, or retains
stolen property which he knows or should know was stolen unless the property is
received, disposed of, or retained with intent to restore it to the owner.” Importantly,
knowledge that the received goods were stolen is “an essential element of the offense
of receiving stolen property.”7 And because of its very nature, the crime of theft by
receiving is “one that is usually proved in whole or in part by circumstantial
evidence.”8 Consequently, possession of recently stolen property, “together with
eventually landed in a ravine was sufficient to support conviction on charge of felony
fleeing or attempting to elude a police officer); Hinton v. State, 297 Ga. App. 565,
566 (1) (b) (677 SE2d 752) (2009) (affirming felony fleeing conviction when
evidence showed that defendant “reached speeds in excess of 100 mph in a residential
area” and “ran a stop sign and then jumped from the car while it was still in motion”
before “the car struck a police cruiser, rolled across the roadway, and ran into a
fence”).
7
White v. State, 283 Ga. 566, 568 (2) (662 SE2d 131) (2008) (punctuation
omitted); see Gillis v. State, 315 Ga. App. 803, 805 (728 SE2d 324) (2012)
(“Knowledge that goods are stolen is an essential element of the crime of receiving
stolen goods, and this knowledge on the part of the accused must be proved; but it
may be inferred from circumstances, [when] the circumstances would excite suspicion
in the minds of ordinarily prudent persons.” (punctuation omitted)).
8
Lee v. State, 320 Ga. App. 573, 577 (1) (c) (740 SE2d 307) (2013)
(punctuation omitted); accord Miller v. State, 351 Ga. App. 757, 765 (1) (c) (833
SE2d 142) (2019).
11
circumstantial evidence supporting an inference the defendant knew the property was
stolen, will sustain a conviction for this crime.”9
In this matter, Count 3 of the indictment charged Shine with theft by receiving,
alleging that he “did unlawfully retain stolen property, to wit: 2014 Dodge Charger,
the property of [the dealership], with a value greater than five thousand dollars
($5,000.00) or more, which he should have known was stolen, and said property not
having been retained with the intent to restore it to its rightful owner. . . .” And the
State presented undisputed evidence that the Dodge Charger was stolen when an
employee of a Columbus automobile dealership was the victim of a car-jacking five
days prior to the theft of the Rusevs’ Mercedes while the employee was taking a
person whom she thought was a customer on a test drive of the vehicle. The evidence
also showed that Shine had been driving the vehicle for a few days shortly after it was
stolen, including driving it to Douglasville, and, indeed, Nataliya testified that he
arrived at her home in the Charger. In addition, the State introduced prior-acts
evidence showing Shine had previously been convicted of theft by receiving of an
9
Lee, 320 Ga. App. at 578 (1) (c) (punctuation omitted); accord Miller, 351
Ga. App. at 765 (1) (c); see Thornton v. State, 292 Ga. 796, 797 (1) (b) (741 SE2d
641) (2013) (holding that knowledge to establish guilt for theft by receiving may be
inferred from possession of recently-stolen property coupled with circumstantial
evidence that would raise suspicion in ordinarily prudent person).
12
automobile after leading police on a high-speed chase. Moreover, although there was
some evidence Shine was involved in the theft of the Charger,10 we “need not
determine whether the evidence presented supports a finding that the defendant was
not the principal thief of the stolen property to uphold a jury’s guilty verdict as to a
theft by receiving charge.”11 Given these particular circumstances, the evidence was
sufficient to support an inference that Shine was aware that the Dodge Charger was
stolen and, thus, to sustain his conviction of theft by receiving.12
10
During the trial, the automobile dealership employee who was car-jacked did
not identify her assailant but testified that the purported customer was wearing a hat
with “New Orleans” printed on it, which was similar to Nataliya’s testimony
regarding the hat Shine was wearing when the Mercedes was stolen.
11
Pender v. State, 311 Ga. 98, __ (1) (a) (856 SE2d 302) (2021).
12
See Miller, 351 Ga. App. at 765 (1) (c) (holding that evidence defendant was
driving stolen van mere hours after it was stolen, used van to flee from police officers
who tried to detain him, and had a previous conviction for leading officers on a high
speed chase in a stolen vehicle was sufficient to support defendant’s theft-by-
receiving conviction); Lee, 320 Ga. App. at 577-78 (1) (c) (affirming defendant’s
theft-by-receiving conviction when evidence showed that defendant was driving
stolen vehicle only 12 hours after it was stolen, attempted to flee from police in
vehicle, and on a prior occasion had similarly fled police while driving a stolen
vehicle); Dawson v. State, 271 Ga. App. 217, 218-19 (1) (609 SE2d 158) (2005)
(holding that evidence that defendant possessed vehicle four days after it was stolen
and fled when officers attempted to stop him, together with similar-transaction
evidence, was sufficient to authorize the jury to infer guilty knowledge and support
theft-by-receiving conviction).
13
For all these reasons, we affirm Shine’s convictions and the denial of his
motion for new trial.
Judgment affirmed. Mercier and Pinson, JJ., concur.
14