Johnson v. State, 435 S.E.2d 458 (Ga. Ct. App. 1993). · Go Syfert
Johnson v. State, 435 S.E.2d 458 (Ga. Ct. App. 1993). Cases Citing This Book View Copy Cite
55 citation events (2 in the last 25 years) across 2 distinct courts.
Strongest positive: Butler v. State (gactapp, 2009-05-28)
Treatment trajectory · 1993 → 2026 · click a year to view as-of
1993 2009 2026
Top citers, strongest first. 20 distinct citers.
discussed Cited as authority (rule) Butler v. State
Ga. Ct. App. · 2009 · confidence medium
Adams and Doyle, JJ., concur. 1 OCGA § 3-3-23 (a) (1). 2 Davis v. State, 275 Ga. App. 714, 715 (1) ( 621 SE2d 818 ) (2005). 3 Crutchfield v. State, 295 Ga. App. 490, 492 (1) ( 672 SE2d 467 ) (2009). 4 Mims v. State, 264 Ga. 271, 272-273 ( 443 SE2d 845 ) (1994). 5 Johnson v. State, 210 Ga. App. 99, 100 (1) ( 435 SE2d 458 ) (1993). 6 Davis v. State, 285 Ga. 176, 177 (2) ( 674 SE2d 879 ) (2009). 7 Massey v. State, 270 Ga. 76, 77 (2) (a) ( 508 SE2d 149 ) (1998).. 8 Hall v. State, 258 Ga. App. 156, 158 (2) ( 573 SE2d 415 ) (2002). 9 Williams v. State, 297 Ga. App. 150, 152 (3) ( 676 SE2d 805 ) (20…
discussed Cited as authority (rule) Jackson v. State
Ga. Ct. App. · 2000 · confidence medium
However, “this statement of law does not accurately state the principle addressed and should never be given.” Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ) (1993), citing Langston v. State, 208 Ga. App. 175 ( 430 SE2d 365 ) (1993).
discussed Cited as authority (rule) Burks v. State
Ga. Ct. App. · 2000 · confidence medium
Pope, P. J., and Miller, J., concur. 1 Fields v. State, 216 Ga. App. 184, 187 (2) ( 453 SE2d 794 ) (1995) (victim’s testimony that defendant forced her to “have sex” with him held evidence of penetration). 2 Mims v. State, 264 Ga. 271, 272 ( 443 SE2d 845 ) (1994). 3 261 Ga. 698 ( 410 SE2d 116 ) (1991). 4 See generally Newsome v. State, 217 Ga. App. 379, 381 ( 457 SE2d 232 ) (1995) (Birdsong, P. J.) (“The failure to give the charge is an incomprehensible waste of judicial economy. . . .”). 5 Johnson v. State, 210 Ga. App. 99, 100 ( 435 SE2d 458 ) (1993) (Birdsong, P. J.), quoted with …
discussed Cited as authority (rule) Morrison v. State
Ga. Ct. App. · 1996 · confidence medium
Cantrell v. State, 212 Ga. App. 288, 290 ( 441 SE2d 879 ); Johnson v. State, 210 Ga. App. 99, 102 ( 435 SE2d 458 ). (b) Regarding Morrison’s requested charges on bare suspicion and guilt by association, the transcript shows the trial court gave a *155 full and complete charge on reasonable doubt, the presumption of innocence, and presence at the scene of a crime.
discussed Cited as authority (rule) Martin v. State
Ga. Ct. App. · 1995 · confidence medium
“It is a statement of law that “ ‘does not accurately state the principle addressed and should never be given.’ Cantrell v. State, 212 Ga. App. 288, 290 ( 441 SE2d 879 ) (1994); Johnson v. State, 210 Ga. App. 99, 102 ( 435 SE2d 458 ) (1993).” Williams v. State, 217 Ga. App. 636, 637 (2) ( 458 SE2d 671 ) (1995). 10.
cited Cited as authority (rule) Hudson v. State
Ga. Ct. App. · 1995 · confidence medium
Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ).’ Matthews v. State, 214 Ga. App. 104, 105 (2) ( 446 SE2d 790 ).” Lawton v. State, 218 Ga. App. 309, 310 (2) ( 460 SE2d 878 ).
cited Cited as authority (rule) Lawton v. State
Ga. Ct. App. · 1995 · confidence medium
Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ).” Matthews v. State, 214 Ga. App. 104, 105 (2) ( 446 SE2d 790 ).
discussed Cited as authority (rule) Williams v. State
Ga. Ct. App. · 1995 · confidence medium
It is a statement of law that “does not accurately state the principle addressed and should never be given.” Cantrell v. State, 212 Ga. App. 288, 290 ( 441 SE2d 879 ) (1994); Johnson v. State, 210 Ga. App. 99, 102 ( 435 SE2d 458 ) (1993).
discussed Cited as authority (rule) Newsome v. State
Ga. Ct. App. · 1995 · confidence medium
As we held in Johnson v. State, 210 Ga. App. 99, 100 ( 435 SE2d 458 ), “In light of [Robinson], a trial court positively invites reversal of a criminal conviction when it fails to give the circumstantial evidence charge whenever such a charge is requested. . . .
discussed Cited as authority (rule) Rainey v. State
Ga. Ct. App. · 1995 · confidence medium
However, this court has repeatedly held that this statement of the law does not accurately state the principle addressed and “should never be given.” Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ) (1993); Matthews v. State, 214 Ga. App. 104, 105 (2) ( 446 SE2d 790 ) (1994).
cited Cited as authority (rule) Ellerbee v. State
Ga. Ct. App. · 1994 · confidence medium
To reverse [this conviction] would be a perversion of justice. [Cits.]” Johnson v. State, 210 Ga. App. 99, 100 (1), 101 ( 435 SE2d 458 ).
cited Cited as authority (rule) Matthews v. State
Ga. Ct. App. · 1994 · confidence medium
Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ).
discussed Cited as authority (rule) Roura v. State (2×)
Ga. Ct. App. · 1994 · confidence medium
Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ) (1993); Langston v. State, 208 Ga. App. 175 ( 430 SE2d 365 ) (1993).
discussed Cited as authority (rule) McBride v. State (2×)
Ga. Ct. App. · 1994 · confidence medium
In Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ) (1993), this court finally laid the two theories charge to rest, noting: "[W]e have recently held that this statement of law does not accurately state the principle addressed and should never be given." See also Kelly v. State, 212 Ga. App. 278 ( 442 SE2d 462 ) (1994). 6.
discussed Cited as authority (rule) Cato v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 1994 · confidence medium
The law requires that “where the State’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” Robinson v. State, 261 Ga. 698, 699 ( 410 SE2d 116 ) (1991); Johnson v. State, 210 Ga. App. 99, 100 (1) ( 435 SE2d 458 ) (1993); see Langston v. State, 208 Ga. App. 175 ( 430 SE2d 365 ) (1993).
discussed Cited as authority (rule) Cantrell v. State
Ga. Ct. App. · 1994 · confidence medium
In his final enumeration of error, appellant contends the trial court should have charged the jury that where the evidence and all reasonable deductions therefrom present two theories, one of guilt and one of innocence, the jury must acquit the defendant. “[W]e have recently held that this statement of law does not accurately state the principle addressed and should never be given.” (Citations omitted.) Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ) (1993).
discussed Cited "see" Carroll v. State (2×)
Ga. Ct. App. · 1997 · signal: see · confidence high
See Johnson v. State, 210 Ga. App. 99 ( 435 SE2d 458 ) (1993).
discussed Cited "see, e.g." Dunaway v. State (2×)
Ga. Ct. App. · 1994 · signal: compare · confidence low
Compare Johnson v. State, 210 Ga. App. 99 (1) ( 435 SE2d 458 ) (1993).
discussed Cited "see, e.g." Blue v. State (2×)
Ga. Ct. App. · 1994 · signal: see also · confidence medium
See also Johnson v. State, 210 Ga. App. 99, 102 (2) ( 435 SE2d 458 ) (1993), which referred to Langston , noting: “[W]e have recently held that this statement of law does not accurately state the principle addressed and should never be given.” See also Kelly v. State, 212 Ga. App. 278 ( 442 SE2d 462 ) (1994). 2.
discussed Cited "see, e.g." Barker v. State (2×)
Ga. Ct. App. · 1993 · signal: see also · confidence medium
This charge has been discredited and “is appropriate, if at all, only when the evidence relied upon by the State is entirely circumstantial. [Cits.] Since there was direct evidence of appellant’s guilt, the charge was not applicable.” Poole v. State, 205 Ga. App. 652, 653 (2) ( 423 SE2d 52 ) (1992); see also Johnson v. State, 210 Ga. App. 99, 102 (3) ( 435 SE2d 458 ) (1993).
Johnson
v.
the State; Hall v. the State
A93A1408, A93A1409.
Court of Appeals of Georgia.
Aug 18, 1993.
435 S.E.2d 458
Peter J. Flanagan, for appellant (case no. A93A1408)., Richard 0. Ward, for appellant (case no. A93A1409)., Daniel J. Craig, District Attorney, J. Wade Padgett, Stacey R. Kasten, Assistant District Attorneys, for appellee.
Birdsong, Pope, Andrews.
Cited by 26 opinions  |  Published
Birdsong, Presiding Judge.

Michael Renard Johnson and Nicholas Fitzgerald Hall were tried jointly for armed robbery and possession of a firearm during the commission of certain crimes, but were convicted only of armed robbery. A grocery store in Augusta was robbed in November 1991, by two other defendants, Bradford and Coleman, who entered the store after appellants Hall and Johnson, separately, had gone in the store. Hall first went in, purchased a small item, “looked around,” and left. Soon after, Johnson entered the store and raised the owner’s suspicions by constantly looking around the store and waiting until the only other customer left before approaching the counter. Because of his suspicions, the owner locked his ice chest and followed Johnson outside. He saw Hall driving a yellow Pontiac with another man in the car, backing out of the parking lot. He heard one of the two men in the car yell, “That’s him. Get him.” Two other men (Coleman and Bradford) “instantly” started walking up on the side of the store. The owner followed them in the store. One of the men, Bradford, jerked the owner across the counter, put a cocked gun to his throat and said, “This is a stickup” and pushed the owner backwards. Coleman also produced a handgun and pointed it at the owner. Bradford and Coleman robbed the owner and fled. The owner followed and, with his[*100] own handgun, shot Coleman. Coleman fell and then got up and ran down Phinizy Road. Two witnesses driving toward the store saw a yellow Pontiac sitting in the middle of Phinizy Road in the opposite lane. The witnesses could not tell whether it was backing up or was sitting without moving, but they saw its brake lights on. After the witnesses drove past the Pontiac, they heard two gun shots and then saw two men running toward the Pontiac. The witnesses drove into the store parking lot, saw the store owner with a gun, and then turned to see the Pontiac speed away. Shortly after, the yellow Pontiac, occupied by four men, arrived at a hospital. They told an attendant that Coleman had been shot on Twelfth Street in Augusta.

The day after the robbery appellant Hall was found driving a yellow Pontiac with a stolen license plate. Dried blood was found between the seats. Hall gave a statement admitting he was in the store and that he, Johnson, Bradford and Coleman had traveled together to the hospital, but denying knowing of the robbery until after Coleman was shot.

Appellant Johnson gave two pretrial statements in which he denied knowing about the robbery but admitted being at the grocery. At trial Johnson said he, Hall and Bradford had agreed to say Coleman was shot on Twelfth Street.

Coleman and Bradford pled guilty. Hall and Johnson, on appeal of their convictions, contend the trial court erred in refusing the requested charge as to the standard of proof in a case of circumstantial evidence, and erred in failing to give the “two theories” charge, to wit, that where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused. Held:

1. The Supreme Court in Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) held that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” In light of that decision, a trial court positively invites reversal of a criminal conviction when it fails to give the circumstantial evidence charge whenever such a charge is requested, and sometimes when it is not requested or when the failure to give it is not objected to, if the failure to give it is clearly harmful and erroneous as a matter of law. Virtually every case contains some circumstantial evidence and, if the charge is not given, stands in danger of being reversed for clearly harmful and erroneous error. The charge is a fundamental principle of law as to criminal guilt and there is no reason not to give it; the State is not harmed by it and has no right to have it omitted. As it happens, however, we find the trial court’s refusal to give the charge on circumstantial evidence in this case, although error, is not just cause to reverse the convictions. The evidence of guilt of both appellant Hall and appellant[*101] Johnson was overwhelming; the evidence and all reasonable deductions therefrom were completely inconsistent with a reasonable hypothesis of innocence. To reverse the convictions would be a perversion of justice. Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515); Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Carpenter v. State, 167 Ga. App. 634, 641 (307 SE2d 19); Kirkland v. State, 141 Ga. App. 664 (234 SE2d 133).

The evidence against appellants Hall and Johnson was not entirely circumstantial; there was direct evidence of Hall and Johnson’s knowing participation in the crime of armed robbery. Both Hall and Johnson separately “cased the scene” immediately prior to the robbery; they did not come in the store together although they were traveling in the same car. When the owner followed Johnson outside, he saw Hall and Johnson in the yellow Pontiac and heard one of them yell, “That’s him. Get him.” Upon this cry from the car occupied only by Hall and Johnson, the two armed robbers (Coleman and Bradford) “instantly” appeared as if from nowhere; they had not been in the car when the owner came outside and he did not see them until they “instantly” appeared after the cry from the Pontiac occupied by Johnson and Hall while their car was backing up to be ready to leave. While the robbery was taking place, Johnson and Hall, in the Pontiac, were sitting still in the middle of the road, according to eyewitnesses. After they heard the shots (when the owner shot Coleman), the witnesses saw Bradford and Coleman run toward the Pontiac which was sitting on ready in the road, occupied by appellants Hall and Johnson. All of this is consistent with a planned operation by all four co-actors and is inconsistent with a hypothesis of happenstance, inadvertence, or mere presence at the scene.

Generally the question whether a hypothesis is “reasonable” is for the jury (see Harris v. State, 236 Ga. 242, 244 (223 SE2d 643); Gee v. State, 146 Ga. App. 528 (246 SE2d 720)), and in determining this question, the defendants’ explanations are taken into consideration insofar as they are consistent with the evidence. Townsend v. State, 127 Ga. App. 797, 799 (195 SE2d 474). Although Hall and Johnson said they knew nothing of the robbery until after Coleman was shot, their separate conduct of examining the scene prior to the robbery, the shout of one of them to the armed robbers to “get him,” and particularly their waiting in the middle of the road while Bradford and Coleman committed armed robbery in the store and before Coleman was shot, are inconsistent with their statements that they did not know of the robbery until after Coleman was shot. The evidence shows to the exclusion of every reasonable hypothesis save that of guilt that Johnson and Hall knowingly waited for Coleman and Bradford to “get” the owner and rob the store. Whether either Johnson or Hall yelled, “That’s him. Get him,” the other knowingly remained in[*102] the Pontiac while the armed robbery was being committed, and remained in the car as it sat in the road waiting for the armed robbers to emerge. It cannot reasonably be explained why Hall and Johnson were sitting in their car in the middle of the road, if not to wait for the armed robbery to be committed and to be ready to flee. Hall was driving the getaway car, and it was Johnson’s behavior in “casing the scene” which aroused the owner’s suspicion and made him follow Johnson outside. There exists no reasonable hypothesis consistent with innocence. Accordingly, neither appellant was deprived of a fair trial by the failure to give the circumstantial evidence charge.

Decided August 18, 1993. Peter J. Flanagan, for appellant (case no. A93A1408). Richard 0. Ward, for appellant (case no. A93A1409). Daniel J. Craig, District Attorney, J. Wade Padgett, Stacey R. Kasten, Assistant District Attorneys, for appellee.

2. The “two theories” charge is improper where there is direct evidence (General v. State, 256 Ga. 393 (349 SE2d 701)); moreover, we have recently held that this statement of law does not accurately state the principle addressed and should never be given. Langston v. State, 208 Ga. App. 175 (430 SE2d 365); see Burris v. State, 204 Ga. App. 806 (420 SE2d 582). In any event, there were hot “two theories” in this case, for under the evidence, there is not a reasonable theory consistent with innocence. The charge was unwarranted.

3. Moreover, Johnson was not entitled to the circumstantial evidence charge because he did not request it in writing, and its omission was not clearly harmful and erroneous under the evidence.

We find no cause to reverse these convictions for error under the overwhelming evidence in this case which excludes every reasonable hypothesis except that of appellants’ guilt. Hamilton, supra; Kirk land; supra.

Judgment affirmed.

Pope, C. J., and Andrews, J., concur.