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BROWNING v. THE STATE

Court of Appeals of Georgia1999-03-11No. A99A0704
236 Ga. App. 893513 S.E.2d 779

Summary

Holding. The appellate court affirmed Browning's conviction for theft by taking, finding the evidence sufficient and the trial court's denial of the mistrial motion proper.

James Franklin Browning was convicted of theft by taking after a jury trial. The evidence showed that on March 2, 1997, Browning took William Crowder's car from a motel parking lot while it was warming up. A motel cleaning employee witnessed Browning leave his room, enter the car, and drive away. Browning was arrested later that day in a different city while driving the stolen vehicle and initially claimed he did not know the car was stolen. On appeal, Browning challenged the sufficiency of the evidence and claimed the trial court erred by denying his mistrial motion.

The appellate court found the evidence sufficient to support the conviction because a rational jury could have found all essential elements of the theft crime beyond a reasonable doubt based on the eyewitness testimony and circumstantial details. The court also rejected Browning's mistrial argument, finding that although an investigator improperly mentioned Browning's DUI arrest during trial—inadvertently placing his character in evidence—the trial judge's prompt curative instruction telling the jury to disregard this statement was an adequate remedy and did not constitute an abuse of discretion.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of evidence for theft conviction based on eyewitness testimony
  • Propriety of trial court's denial of mistrial motion after introduction of improper character evidence
  • Adequacy of curative jury instruction as remedy for inadvertent character evidence

Procedural posture

Browning appealed his jury conviction for theft by taking, raising claims regarding evidence sufficiency and the trial court's denial of his mistrial motion.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Blackburn, Judge.

James Franklin Browning appeals his conviction, following a jury trial, for theft by taking, contending (1) that the evidence was insufficient to support the verdict against him and (2) that the trial court erred in denying his motion for a mistrial after the introduction of improper character evidence. For the reasons set forth below, we affirm.

1.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Browning] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

On the morning of March 2, 1997, William Crowder, who was staying at the Downtowner Motor Lodge in Dalton, Georgia, started his car and then returned to his hotel room while the engine warmed up. While Crowder was inside, a man entered Crowder’s car and began to drive away. Running outside, Crowder caught a side view of the thief, whom he described as wearing glasses and having a receding hairline. Fanny Higgins, a cleaning lady on duty at the time of the theft, witnessed Browning, who was wearing glasses, leave Room 273 of the motel, enter Crowder’s car and drive it away. Renee Barberi, the motel’s clerk, confirmed that Room 273 was leased to Browning on the date of the theft. Later that day, Officer Mike Reece arrested Browning for driving under the influence after he discovered him erratically driving Crowder’s car in Valdosta. Prior to Reece’s discovery of the theft in Dalton, Browning volunteered at the time of his DUI arrest that he did not know that the car was stolen. This evidence was sufficient to support Browning’s conviction for the theft of Crowder’s car.

Decided March 11, 1999.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Matthew A. Rankin, Assistant District Attorney, for appellee.

2. During trial, Investigator Thomas Phillips inappropriately testified that Browning had been arrested for DUI, thereby placing Browning’s character in evidence. Browning immediately moved for a mistrial, which the trial court denied. The trial court then gave the jury curative instructions in which it told the jury not to give any consideration to the DUI charge.

Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety. We have previously held that curative instructions [are] an adequate remedy when witnesses improperly placed the defendant’s character into evidence by testifying about his prior convictions or criminal acts. In this case, the [investigator’s] reference to [the DUI charge] appears to be inadvertent and the trial judge promptly instructed the jury to disregard the [investigator’s statement]. Under these circumstances, we conclude that the trial court did not abuse its discretion in deciding to give [curative instructions] to the jury rather than grant a mistrial.

(Footnotes omitted.) Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997).

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.