McCulloch v. State

357 Ga.App. 67

849 S.E.2d 795

MCCULLOCH

v.The STATE.

A20A1498

Court of Appeals of Georgia.

October 7, 2020

Karen H. Brouse, for Appellant.

Herbert E. Franklin, La Fayette, Megan Camille Gaither, for Appellee.

Miller, Presiding Judge.

Kenny Lynn McCulloch¹ seeks review after a jury found him guilty of twenty counts of second-degree burglary. On appeal, he argues that (1) the trial court erred in failing to instruct the court reporter to transcribe the entire voir dire of the jury; (2) the trial court erred in denying his motion for a directed verdict because the evidence was insufficient to sustain his convictions; (3) the trial court erroneously admitted video evidence; and (4) the trial court plainly erred when it failed to render a specific sentence and instead directed the State to prepare the details of the sentence. Upon a close review of the record, we reverse McCulloch's conviction for Count 6 of the indictment because the proof at trial did not match the victim alleged in the indictment, but we discern no error on any of the remaining issues and otherwise affirm McCulloch's convictions and sentences.

Viewed in the light most favorable to the jury's verdicts,² the record adduced at trial shows that James Anderson owned Mack Smith Mini Storage, a self-storage facility in Rossville, Georgia. On the morning of December 26, 2017, James Anderson noticed that a door on one of the storage units was open. He also observed a man with a female passenger driving a truck with a "dingy red color" and a different color hood. The truck was loaded with so many items that James Anderson "figured somebody was moving out." While James Anderson continued his check of the property, he noticed that more of the storage units had their locks removed. James Anderson checked inside one of the units with a missing lock and noticed that the items were "just scrambled around inside." He called his daughter and manager of the business, Kristie Anderson. Kristie Anderson and another employee came to Mack Smith Mini Storage to assess the damage. The three contacted the county sheriff's office and all of the renters that had missing or broken locks on their unit doors. The employees noticed that 20 storage units had their locks broken.

Kristie Anderson and the responding officer reviewed the security camera footage from the morning and the night before. The footage showed a red pickup truck with a black hood and a black tailgate making multiple trips to the storage facility on the night of December 25, 2017, and the morning of December 26, 2017, each time exiting the premises with a truck bed loaded with items.³ According to Kristie Anderson, there was no single storage unit on the premises capable of holding the amount of property seen taken from Mack Smith Mini Storage, and it was not normal for someone to enter and exit the property numerous times unless they were moving into or out of a unit.

Law enforcement's investigation of the burglary led them to the home of Mickey Croft. Croft considered McCulloch to be a good friend, and he had allowed McCulloch and his girlfriend, Whitney Yarber, to stay in his backyard shed. According to Croft, McCulloch owned a red truck and had painted parts of it black. One day after Christmas 2017, McCulloch came to Croft's house with a trailer full of items. When Croft gave law enforcement permission to search the property, they saw many items of property laying in the yard and a truck that matched the description of the vehicle seen in the surveillance footage. Law enforcement recovered most of the stolen property from the house, and they observed a lanyard and phone receipt with Yarber's name on it among the stolen property. Neither Yarber nor McCulloch had signed an agreement with Mack Smith Mini Storage to store their property on the premises.

A grand jury indicted McCulloch on 20 counts of second-degree burglary ( OCGA § 16-7-1 (c) ). At trial, the jury found McCulloch guilty of all counts. The trial court sentenced McCulloch to a total of 20 years, consisting of eight years’ imprisonment and 12 years’ probation, and it imposed a total of $2,340 in restitution to one of the victims. McCulloch filed a motion for new trial. Following a hearing, the trial court denied McCulloch's motion for new trial. This appeal followed.

1. McCulloch first argues that the trial court erred in failing to instruct the court reporter to transcribe the entire voir dire as required by OCGA § 17-8-5. This argument is foreclosed by precedent.

OCGA § 17-8-5 (a) provides that "[o]n the trial of all felonies the presiding judge shall have the testimony taken down and, when directed by the judge, the court reporter shall exactly and truly record or take stenographic notes of the testimony and proceedings in the case, except the argument of counsel." Our Supreme Court has interpreted this provision to mean that, although objections and rulings thereon made during jury selection are required to be reported and made part of the trial record, there is no requirement that the entire jury selection be reported and made part of the record in a nondeath penalty felony case because the jury voir dire is not part of the "proceedings in the case." State v. Graham , 246 Ga. 341, 342, 271 S.E.2d 627 (1980).

Here, the trial court included the objections made during voir dire in the trial transcript, and it appears that McCulloch did not make any special request to have the entire voir dire transcribed under OCGA § 5-6-41 (j). Under our precedent, there was no requirement that the trial court transcribe the remainder of voir dire. See Graham , supra, 246 Ga. at 342, 271 S.E.2d 627 ; Brinkley v. State , 320 Ga.App. 275, 280 (4), 739 S.E.2d 703 (2013) (rejecting claim that defendant's constitutional rights were violated because the entire jury selection process was not reported and transcribed as part of the trial record). McCulloch's claim that he could not properly prepare for the appeal without the voir dire transcript is also without merit. See Brinkley , supra, 320 Ga. App. at 280 (4), 739 S.E.2d 703 ("Merely asserting a general unspecified hope of reversible error during voir dire is insufficient to warrant a new trial on the ground that a transcript of the proceeding should have been made so as to accommodate a search for error now buried in unrecorded history.") (citations omitted); Primas v. State , 231 Ga. App. 861, 501 S.E.2d 28 (1998) ("[The defendant's] claim that he is unable to prepare an appeal without a complete transcript that includes the voir dire also fails under Graham .").⁴ Accordingly, we reject this enumeration of error.

2. In three related enumerations of error, McCulloch next argues that the evidence was insufficient to support all of his convictions and that the trial court erred in denying his motion for a directed verdict on 13 of the counts based on evidence insufficiency. He argues that, for 13 counts, the State failed to prove that he had illegally entered the storage units or had the intent to take items without permission because the victims underlying these counts did not testify at trial and because there was no evidence otherwise showing that he did not have permission to enter those units. He further argues that the State failed to provide sufficient evidence to identify him as the driver of the truck that was shown on the video footage and that the State failed to exclude the reasonable hypothesis that Croft's nephew, Calvin Pittman, was the actual perpetrator. For the following reasons, we agree with McCulloch that the evidence was insufficient to support Count 6 of the indictment, but we conclude that the evidence was sufficient to support all of the 19 remaining counts of conviction.

[T]he standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. When reviewing the sufficiency of the evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.

(Citation omitted.) Smith v. State , 350 Ga. App. 496, 497, 829 S.E.2d 776 (2019). In addition,

[a] conviction may be based upon circumstantial evidence if the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused.

OCGA § 24-4-6. When the evidence meets this test, circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury. When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant's guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law. Further, while circumstantial evidence must exclude every other reasonable hypothesis but the defendant's guilt, the evidence need not exclude every inference or hypothesis.

(Citation omitted.) Johnson v. State , 291 Ga. App. 253, 254, 661 S.E.2d 642 (2008).

"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 [or] structure[.]" OCGA § 16-7-1 (c).

First, as to McCulloch's argument that the State did not present sufficient evidence to identify him as one of the perpetrators, we note that the State presented evidence that McCulloch owned a distinctive red truck with a black hood, which Anderson identified as the truck he saw visiting Mack Smith Mini Storage. The State also presented evidence that McCulloch stayed in a shed on Croft's property and that the police discovered the stolen...