Tremayne Nathan Nations v. State

FIRST DIVISION
BARNES, P. J.,
McMILLIAN 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
March 9, 2018
In the Court of Appeals of Georgia
A17A1444. NATIONS v. THE STATE.
REESE, Judge.
A jury found Tremayne Nations guilty beyond a reasonable doubt of one count
of burglary in the second degree and one count of “smash and grab” burglary.1 He
appeals from the denial of his motion for new trial, contending that the evidence was
insufficient to support his convictions, the trial court erred in admitting certain
evidence, and the court erred in refusing to give a requested jury instruction. For the
reasons set forth, infra, we affirm.
Viewed in the light most favorable to the jury’s verdict,2 the record shows the
following facts. In the early morning hours of January 20, 2014, two men committed
1
See OCGA §§ 16-7-1 (c); 16-7-2 (b).
2
See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
burglaries at two different hardware stores in Douglas County. At about 12:50 a.m.,
a dark-colored Dodge minivan pulled up to the fence surrounding Able Tool Rental
on Fairburn Road. Two men wearing gloves and dark clothes exited the van and cut
the chain securing the fence’s gate with a 24-inch orange-red bolt cutter. They drove
the van to the front of the store, so that the sliding door of the van was facing the
store, then used the bolt cutter to shatter the glass front door of the store. Within a
minute, the men entered the store, took two nail guns, jumped back in the van, and
drove away.
Then, at 2:11 a.m. the same morning, two men driving what appeared to be the
same van drove up to the fence of the Ace Hardware store in Lithia Springs. They cut
the gate’s chain with the bolt cutters and parked with the passenger-side sliding door
facing the store. Within a minute, they shattered the store’s glass door with the bolt
cutters, loaded two generators into the van, and drove away.
Investigator Dale Kelley worked for the Douglas County Sheriff’s Office and
learned about the burglaries later that morning. Given the similarities between the
burglaries, he believed that they had been committed by the same men. Thus, he
issued a statewide “be on the lookout” (“BOLO”) alert to see if there had been similar
burglaries committed recently in the Atlanta area. The BOLO alert included
2
information about the crimes, as well as pictures of the van and the two suspects that
Kelley retrieved from the surveillance cameras at each store.
A few days later, Kelley received a call from the Gwinnett County Police
Department about a similar burglary that had occurred on January 22, 2014, two days
after the Douglas County burglaries. According to Gwinnett County officers, at about
3:45 a.m., two men dressed like the Douglas County suspects had burglarized an Ace
Hardware store in Loganville. The men parked a dark-colored Dodge minivan in front
of the store, shattered the glass door of the store with orange-red bolt cutters, ran
inside, and took ten chainsaws, at least one of which was an Echo brand chainsaw,
before driving away.
Investigator Kelley was also contacted by an investigator with the City of
Oakwood3 Police Department about an early-morning burglary that occurred on
January 26, 2014, six days after the Douglas County burglaries. In that case, an
Oakwood patrol officer observed a dark green Dodge van parked in front of the
Howard Brothers hardware store at about 1:40 a.m. The officer turned off his lights
and pulled in behind the van. He saw a man dressed in dark clothing exit the van and
start to go inside the store through the glass front door, which was shattered. When
3
The City of Oakwood is in Hall County, close to the Gwinnett County line.
3
the officer shone his spotlight on the man, the man turned around, looked at the
officer, and jumped back into the van. Moments later, another man exited the store
and jumped into the van. The van sped away, and the officer activated his emergency
lights and siren and followed. The van went around the hardware store building and
collided with the patrol car of the officer’s partner, who had driven around to the back
side of the building. Although the patrol car was rendered inoperable, the van kept
moving, running a red light and driving recklessly at speeds up to 105 miles per hour
through the city’s two-lane streets, heading toward Atlanta. The officer briefly lost
sight of the van when the van’s driver ran several stop signs and drove down a poorly
lighted narrow road. Moments later, the officer found the van, parked and abandoned,
at the end of the dead-end road. Neither suspect was found that night.
The Oakwood patrol officer could see items in the van that he believed had
been stolen,4 and he called an investigator with his department. The van was
transported to a secured, locked garage, where it remained until the investigator
obtained a search warrant and processed the vehicle with the assistance of a special
agent from the Georgia Bureau of Investigation (“GBI”). Inside the van, they
4
A subsequent investigation revealed that the burglars had taken a concrete
saw, leaf blowers, and a backpack blower from the Howard Brothers hardware store.
4
recovered the following items: an “orangish” 24-inch bolt cutter; a screwdriver; a
crowbar; a matchbox; two leaf blowers; one glove; a tag for gloves; a global
positioning system (“GPS”) unit; and a concrete saw. They also recovered an “Echo
Quick Start Guide” for the type of chainsaw that had been stolen in the Gwinnett
County burglary,5 and a price tag to a generator that had been stolen in the burglary
of the Ace Hardware in Douglas County.6 Finally, the GBI special agent found a
cigarette butt on the carpet between the passenger seat and the center console of the
van. The agent took particular notice of the cigarette butt because there was no other
evidence of any smoking in the van, i.e., no other butts, ashes, or cigarette odor.7
Officers determined that the Dodge van had been stolen from a Cobb County
car repair shop at around 2:00 a.m. on January 21, 2014, the day after the Douglas
5
No Echo brand chainsaw was stolen from the Howard Brothers hardware
store in Oakwood.
6
Officers lifted latent fingerprints from the price tag and gave it to the Douglas
County Sheriff’s Office’s latent print examiner to see if she could find a match. The
examiner matched the fingerprints on the tag with an employee of the Douglas
County Ace Hardware store, who testified that he had created and laminated the price
tag himself at the store. The evidence also showed that no generator had been stolen
from the Howard Brothers hardware store in Oakwood.
7
The owner of the van testified at trial and confirmed that neither she nor her
husband smoked.
5
County burglaries and the day before the Gwinnett County burglary. Investigator
Kelley opined that the burglars had likely used a stolen Dodge van in the Douglas
County burglaries, then discarded it as quickly as possible before stealing a similar
van at the Cobb County shop. He testified that Dodge vans were very easy to steal
using only a standard screwdriver, and that they had large, open storage spaces and
wide sliding doors that made it easier to load large items and then hide them from
view. A dark-colored vehicle was also favored by perpetrators because it was less
noticeable than, for example, a red one. In his experience, car thieves often became
very proficient at stealing certain types of vehicles, so they tended to repeatedly steal
those vehicles.
Officers also seized the links that were cut on each of the chains that secured
the fences of the Douglas County stores; the links were submitted to the GBI Division
of Forensic Science (the “state crime lab”) for “tool mark” testing. A firearms and
tool marks examiner employed by the crime lab testified that both links were cut with
the same type of tool, an “opposed blade pinching or shearing tool,” and that the bolt
cutter found in the van was this type of tool. The examiner could not conclusively
determine, however, whether the bolt cutter found in the van had been the actual tool
that cut the links.
6
In an effort to see if either of the perpetrators had used a cell phone
immediately before or after the burglaries, Investigator Kelley and the Gwinnett
County investigator obtained cell tower “dump” records for towers near the Douglas
County burglaries and the Gwinnett County burglary.8 They requested records of all
calls made or received from 15 minutes before the approximate time of each burglary
to 15 minutes afterward. The Gwinnett County records showed that two phone
numbers repeatedly appeared: (404) 468-**** (the “468 number”), and (404) 587-
**** (the “587 number”). Specifically, someone made five phone calls from the 468
number around the time of the Gwinnett County burglary; two of those calls were to
the 587 number. In the records from the tower near the Able Tool Rental facility in
Douglas County, the 468 number showed up twice. And, in the records from the
tower near the Douglas County Ace Hardware, the 468 number showed up
approximately four minutes after that burglary was committed. Investigator Kelley
then obtained the account information for the 468 number, but it listed an invalid
address in Atlanta, and Kelley was unable to locate a person by the name of the listed
8
The Oakwood Police Department did not conduct a cell tower dump.
7
subscriber in Atlanta.9 Further, the account records showed that the account was
activated nine days before the Douglas County burglary and was cancelled on May
9, 2014. The records for the 587 number, however, showed that the subscriber as
“Gail Nations.” Moreover, the 587 number was the same number the Appellant
provided as his sister’s cell phone number when he was booked into the Douglas
County jail on July 23, 2014, and the Appellant called the 587 number 156 times
during the 11 months he spent in jail.
Finally, Investigator Kelley submitted the cigarette butt to the GBI crime lab
for DNA testing. Once the Appellant was arrested and taken to the Douglas County
jail, Kelley secured a search warrant that authorized him to obtain a DNA sample
from the Appellant. Kelley took buccal swabs of the Appellant and sent them to the
GBI crime lab for DNA testing. A DNA analysis of the cigarette butt showed that it
contained the DNA of a single individual, the Appellant.
In addition to this evidence, the State showed that, in 2010, the Appellant pled
guilty to burglarizing a commercial facility that rented and sold power tools in
Griffin, Spalding County. In that case, at about 2:30 a.m. on June 5, 2010, two men
9
The evidence showed that the cell phone company did not usually verify the
names or addresses of subscribers.
8
parked a stolen, dark-colored minivan in front of the building and smashed the glass
front door. Officers arrived while the burglary was in process and arrested both
suspects at the scene; one of the suspects was the Appellant. Afterward, the officers
observed that the sliding door of the van was open and that there were tools inside the
van. The State presented this evidence in the instant case to prove identity and to
disprove mistake or accident, pursuant to OCGA § 24-4-404 (b).10
Ultimately, the Douglas County jury in this case found the Appellant guilty of
burglary in the second degree (as a lesser-included offense of “smash and grab”
burglary) in the Douglas County Ace Hardware store case, and “smash and grab”
10
See OCGA § 24-4-404 (b) (“Evidence of other crimes, wrongs, or acts shall
not be admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.”). The trial court gave a limiting
instruction to the jury before the State presented this evidence. The admission of this
evidence is not challenged in this appeal.
9
burglary in the Able Tool Rental case.11 The trial court denied his motion for new
trial, and 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,12 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.13
11
See OCGA §§ 16-7-1 (c) (“A person commits the offense of burglary in the
second degree when, without authority and with the intent to commit a felony or theft
therein, he or she enters or remains within an occupied, unoccupied, or vacant
building, structure, railroad car, watercraft, or aircraft.”); 16-7-2 (b) (“A person
commits the offense of smash and grab burglary when he or she intentionally and
without authority enters a retail establishment with the intent to commit a theft and
causes damage in excess of $500.00 to such establishment without the owner’s
consent.”).
12
443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).
13
Walker v. State, 329 Ga. App. 369, 370 (765 SE2d 599) (2014) (punctuation
and footnote omitted).
10
The standard of Jackson v. Virginia,14 is met if the evidence is sufficient for any
rational trier of fact to find the defendant guilty beyond a reasonable doubt of the
crime charged.15 With these guiding principles in mind, we turn now to the
Appellant’s specific claims of error.
1. The Appellant contends that the State presented insufficient circumstantial
evidence to support the jury’s verdict. Specifically, he argues that the evidence was
insufficient to prove that he committed the Douglas County burglaries for the
following reasons: there were no eyewitnesses to the burglaries; neither his
fingerprints nor his DNA was found at either scene; the surveillance videos did not
show the perpetrators’ faces; he was not arrested at or near the scene of either
burglary; the perpetrators did not implicate him in the burglaries; and he did not
confess to the crimes.
“To 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.”16 Moreover,
14
443 U. S. at 319 (III) (B).
15
See Bautista v. State, 305 Ga. App. 210, 211 (1) (699 SE2d 392) (2010).
16
OCGA § 24-14-6.
11
[q]uestions as to the reasonableness of hypotheses are generally to be
decided by the jury which heard the evidence and where the jury is
authorized to find that the evidence, though circumstantial, was
sufficient to exclude every reasonable hypothesis save that of guilt, that
finding will not be disturbed unless the verdict of guilty is insupportable
as a matter of law.17
We agree with the trial court’s conclusion that there was an overwhelming
amount of circumstantial evidence presented in this case, including cell phone records
that strongly support a finding that the Appellant was at or near the scenes of the
burglaries at the time each was committed, and DNA evidence that directly implicated
the Appellant in a strikingly similar burglary committed days after the Douglas
County burglaries. It was for the jury, not this Court, to decide whether the totality
of the evidence supported a reasonable hypothesis other than the Appellant’s guilt.18
We find no error.
2. The Appellant claims that the trial court improperly admitted into evidence
the cigarette butt that was found in the van after the Oakwood burglary. He argues
that the State failed to adequately prove the chain of custody. However, the Appellant
17
Wright v. State, 302 Ga. App. 332, 333 (690 SE2d 654) (2010) (citation
omitted).
18
See id.12
concedes: (a) the cigarette butt containing the DNA was not a fungible item, and (b)
there was no evidence of tampering presented at trial.
(a) “In contrast to fungible evidence, if a piece of tangible evidence is a distinct
item that could be recognized from its features from someone who saw it before, that
person’s testimony identifying the item is sufficient to authenticate it.”19 Here, the
GBI agent who collected the cigarette butt from the van identified it at trial. This was
sufficient authentication for it to be admissible.20
Further, as noted by the trial court, the inculpatory aspect of the cigarette butt
was not simply that there was saliva on the butt, but that the DNA of that saliva
matched the Appellant’s DNA. “DNA, like a fingerprint, is unique to a single
individual and, therefore, is distinguishable from other DNA samples. Thus, DNA
19
Hines v. State, 307 Ga. App. 807, 810 (2) (706 SE2d 156) (2011) (citations
and punctuation omitted).
20
See id. at 809-810 (2) (706 SE2d 156) (2011) (At trial, a sexual assault kit
was shown to have the same identification number and bar code as the state crime lab
originally assigned to it, and it had the initials of the GBI analyst who worked on the
case. Thus, the kit itself, as marked, was not fungible. Because a witness identified
the kit at trial, the court properly admitted the evidence at trial.); Kuykendall v. State,
299 Ga. App. 360, 363 (683 SE2d 56) (2009) (Because the bed sheet at issue was “a
non-fungible physical object easily identifiable by observation, proof of its chain of
custody was not required prior to its admission into evidence.”) (citation and
punctuation omitted).
13
evidence may be admitted without demonstrating a chain of custody, since it can be
readily identified by reference to the [Appellant’s] DNA.”21
Accordingly, the trial court did not abuse its discretion in admitting this
evidence.
(b) Even if the State had been required to prove the chain of custody for the
cigarette butt, it met this burden by presenting the testimony of each person who
handled the butt from the time it was collected from the van until trial. Although the
Appellant notes that Investigator Kelley did not explicitly say that he delivered the
cigarette butt to the GBI crime lab, Kelley testified that he received the package
containing the butt from the Oakwood investigator, removed the butt so he could
photograph it, repackaged it, and prepared the paperwork for the GBI crime lab. The
State also presented the testimony of the GBI analyst who received the package and
tested the cigarette butt for DNA.22 As the Appellant has conceded, there was no
21
Kuykendall, 299 Ga. App. at 364 (citation and footnotes omitted).
22
See Maldonado v. State, 268 Ga. App. 691, 693-694 (1) (603 SE2d 58)
(2004) (“Absent affirmative evidence of tampering, a crime lab and all its branch
offices and employees are considered as a single link in the chain of custody. . . .
[Thus,] proof that the evidence was in the custody of the State Crime Lab established
the chain of custody. The State need not establish a ‘perfect’ chain of custody for
evidence within the crime lab itself.”) (citations and punctuation omitted); Givens v.
State, 214 Ga. App. 774, 775 (2) (449 SE2d 149) (1994) (“Since there is no
14
evidence presented that even suggested that someone tampered with the package
containing the cigarette butt while it was in the State’s custody.
When the State seeks to introduce into evidence an item that is
subject to the chain of custody rule, it must establish with reasonable
assurance that the item seized is the same as the item being offered into
evidence. Nevertheless, the State is not required to foreclose every
possibility of tampering; it need only show reasonable assurance of the
identity of the evidence. We review the trial court’s decision on the
adequacy of the chain-of-custody evidence under an abuse-of-discretion
standard. Also, this court has recognized that where, as here, there is no
affirmative evidence of tampering or substitution, a missing link in the
chain of custody does not alone require exclusion of the evidence. Thus,
where the testimony shows that the police placed the substance in a
tamper-proof identifiable container and that the crime lab technician
who tests the substance received it in the same container with no proof
of tampering or substitution, the State has met its burden of showing
with reasonable certainty that the substance tested was the same as that
seized. . . . Whatever doubt may have arisen from the alleged
mishandling of evidence in this specific case could have been argued to,
and considered by, the jury, and the jury is charged with deciding how
much weight to give evidence. Where there is only a bare speculation of
affirmative evidence of tampering, the trial court did not err in treating the Georgia
Crime Lab as a single ‘link’ in the chain of custody for admissibility purposes. [M]ere
speculative doubt as to the handling of evidence while in the possession of the
Georgia Crime Lab is a matter for consideration by the jury.”) (citation omitted).
15
tampering it is proper to admit the evidence and let whatever doubt
remains go to its weight.23
Based upon the evidence presented, we conclude that the State met its burden
of establishing that the cigarette butt tested by the GBI crime lab was the same
cigarette butt seized from the van. Thus, the trial court properly admitted the cigarette
butt, and the DNA test results obtained therefrom, into evidence.24
3. The Appellant contends that the trial court improperly denied his written
request for a jury instruction on the reliability of eyewitness identification.
It is axiomatic that a “jury charge must be adjusted to the evidence, apt, and a
correct statement of the applicable law.”25 Thus, “[i]f any portion of a requested
charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored,
or not reasonably raised by the evidence, denial of the charge request is proper.”26
23
Thomas v. State, 288 Ga. App. 602, 605-606 (2) (654 SE2d 682) (2007)
(citations and punctuation omitted).
24
See id. at 606 (2).
25
Marryott v. State, 263 Ga. App. 65, 69 (5) (587 SE2d 217) (2003) (citation
and punctuation omitted).
26
Johnson v. State, 293 Ga. App. 32, 39 (6) (666 SE2d 452) (2008) (citation
and punctuation omitted).
16
As the Appellant concedes, the State did not present any eyewitness testimony
purporting to identify him as the perpetrator of the Douglas County burglaries.
Consequently, the trial court did not err in failing to charge the jury on the reliability
of eyewitness identification.27
Judgment affirmed. Barnes, P. J., and McMillian, J., concur.
27
See id.; Render v. State, 257 Ga. App. 477, 479 (3) (571 SE2d 493) (2002)
(“A trial court does not err by failing to give a jury charge where the requested charge
is not adjusted to the evidence presented at trial.”) (citation omitted).
17