Evans v. State, 453 S.E.2d 100 (Ga. Ct. App. 1995). · Go Syfert
Evans v. State, 453 S.E.2d 100 (Ga. Ct. App. 1995). Cases Citing This Book View Copy Cite
“he impoundment of the vehicle was necessary because all three of its occupants had been arrested; no one remained to take custody of the car and remove it from the side of the interstate.”
98 citation events (47 in the last 25 years) across 1 distinct court.
Strongest positive: Scott v. State (gactapp, 2012-06-22)
Treatment trajectory · 1995 → 2026 · click a year to view as-of
1995 2010 2026
Top citers, strongest first. 33 distinct citers.
discussed Cited as authority (quoted) Scott v. State (2×) also: Cited "see"
Ga. Ct. App. · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
he impoundment of the vehicle was necessary because all three of its occupants had been arrested; no one remained to take custody of the car and remove it from the side of the interstate.
discussed Cited as authority (quoted) Shelli Scott v. State (2×) also: Cited "see"
Ga. Ct. App. · 2012 · signal: see · quote attribution · 1 verbatim quote · confidence high
he impoundment of the vehicle was necessary because all three of its occupants had been arrested; no one remained to take custody of the car and remove it from the side of the interstate.
discussed Cited as authority (rule) Timothy Sutton v. State
Ga. Ct. App. · 2017 · confidence medium
Sutton next argues that the trial court plainly erred by failing to charge the jury on the elements of burglary when the indictment specifically charged him with 13 See Kennon, 232 Ga. App. at 496 (3) (holding that there was sufficient evidence to support a conviction for possession of tools for the commission of a crime when the evidence showed that, late at night, the defendant positioned his vehicle behind a closed business and immediately moved upon noticing the police; his stolen pick-up truck contained numerous tools commonly used in the commission of burglary; and his presence behind a …
discussed Cited as authority (rule) Sutton v. the State
Ga. Ct. App. · 2016 · confidence medium
Thus, to the extent that Sutton has adequately briefed this argument on appeal, we conclude that it is meritless. 6 See, e.g., Walker v. State, 281 Ga.App. 94, 100 (6) ( 635 SE2d 577 ) (2006) (holding that the evidence was sufficient to support a conviction for possession of tools for the commission of a crime when, inter alia, the defendant was present at the scene where cars were broken into with the kind of tools that the defendant possessed and stolen items were found in his vehicle); Manous v. State, 205 Ga. App. 804, 805 (1) ( 423 SE2d 721 ) (1992) (holding that there was sufficient evid…
discussed Cited as authority (rule) James Beville v. State (2×)
Ga. Ct. App. · 2013 · confidence medium
Thus, the impound and the inventory search were proper because no one remained to take custody of the vehicle and remove it from the side of the interstate.19 Because the officer had legitimate grounds for an inventory search, the evidence seized during the search was properly admitted, and the trial court did not err by denying Beville’s motion to suppress on this ground. 17 Evans v. State, 216 Ga. App. 21, 24 (2) ( 453 SE2d 100, 103 ) (1995). 18 (Citation and punctuation omitted.) Scott v. State, 316 Ga. App. 341, 343 ( 729 SE2d 481 ) (2012). 19 See id. (officers are not required to ask ar…
discussed Cited as authority (rule) Beville v. State
Ga. Ct. App. · 2013 · confidence medium
See id. (officers are not required to ask arrestee if they can make arrangements for removing the vehicle if no one is available on the scene to take custody of the car); Evans, 216 Ga. App. at 24 (2).
examined Cited as authority (rule) Brown v. State (3×) also: Cited "see"
Ga. Ct. App. · 2011 · confidence medium
(Citation and punctuation omitted.) Evans v. State, 216 Ga. App. 21, 22 (1) ( 453 SE2d 100 ) (1995).
discussed Cited as authority (rule) Heard v. State
Ga. Ct. App. · 2009 · confidence medium
S., 284 Ga. App. 680, 682 (2) ( 644 SE2d 527 ) (2007). 3 Parnell v. State, 260 Ga. App. 213, 218 (6) ( 581 SE2d 263 ) (2003). 4 OCGA § 16-4-5 (a). 5 OCGA § 16-4-5 (b) (1). 6 Level, supra at 604 (1). 7 (Punctuation and footnote omitted.) New v. State, 270 Ga. App. 341, 343 (1) ( 606 SE2d 865 ) (2004); Evans v. State, 216 Ga. App. 21, 22 (1) ( 453 SE2d 100 ) (1995). 8 Redd v. State, 229 Ga. App. 364, 365 ( 494 SE2d 31 ) (1997). 9 Prather v. State, 279 Ga. App. 873, 876 (1) ( 633 SE2d 46 ) (2006). 10 See Hurley v. State, 287 Ga. App. 482, 483 ( 651 SE2d 748 ) (2007).
discussed Cited as authority (rule) Taylor v. State (2×)
Ga. Ct. App. · 2009 · confidence medium
See Rolfe, 278 Ga. App. at 607 ; Cox v. State, 263 Ga. App. 266, 267 (1) ( 587 SE2d 205 ) (2003); Evans v. State, 216 Ga. App. 21, 23 (2) ( 453 SE2d 100 ) (1995); Smith v. State, 182 Ga. App. 58, 58-59 ( 354 SE2d 681 ) (1987).
cited Cited as authority (rule) Walker v. State
Ga. Ct. App. · 2006 · confidence medium
Evans v. State, 216 Ga. App. 21, 24 (2) ( 453 SE2d 100 ) (1995). 2 Judgment affirmed in part and reversed in part.
cited Cited as authority (rule) Steed v. State
Ga. Ct. App. · 2005 · confidence medium
Evans v. State, 216 Ga. App. 21, 23 (2) ( 453 SE2d 100 ) (1995).
discussed Cited as authority (rule) New v. State
Ga. Ct. App. · 2004 · confidence medium
The State does not challenge, and thus we do not address, either ruling. 4 See Adams v. State, 178 Ga. App. 261, 262 (2) ( 342 SE2d 747 ) (1986). 5 (Punctuation omitted.) I1d. at 263 (2) (b). 6 (Punctuation omitted.) Id. 7 See id. at 263-264 ; Evans v. State, 216 Ga. App. 21, 22 (1) ( 453 SE2d 100 ) (1995); see also OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance …
cited Cited as authority (rule) Kinman v. State
Ga. Ct. App. · 2000 · confidence medium
Evans v. State, 216 Ga. App. 21, 23 (2) ( 453 SE2d 100 ) (1995).
discussed Cited as authority (rule) Gary v. State
Ga. Ct. App. · 1999 · confidence medium
Smith and Eldridge, JJ, concur. 1 Wiggins v. State, 208 Ga. App. 757, 759 (3) ( 432 SE2d 113 ) (1993). 2 Jones v. State, 212 Ga. App. 676, 679 (2) ( 442 SE2d 908 ) (1994). 3 See Payne v. State, 219 Ga. App. 439 ( 465 SE2d 724 ) (1995); Evans v. State, 216 Ga. App. 21, 24 (3) ( 453 SE2d 100 ) (1995); compare McCormick v. State, 222 Ga. App. 753, 754 (1) ( 476 SE2d 271 ) (1996). 4 Louis v. State, 202 Ga. App. 681, 682 (3) ( 415 SE2d 289 ) (1992); see also Larochelle v. State, 231 Ga. App. 736, 738 (4) ( 499 SE2d 371 ) (1998). 5 Sizemore v. State, 195 Ga. App. 548 ( 395 SE2d 669 ) (1990).
discussed Cited as authority (rule) State v. Lowe
Ga. Ct. App. · 1997 · confidence medium
Conversely, we have found impoundment of a car authorized where the sole occupant was arrested for driving with a suspended or invalid license, and he had no companion or other person capable of removing the car in a timely manner, Pierce v. State, 194 Ga. App. 481 (1) ( 391 SE2d 3 ) (1990); Gooden v. State, 196 Ga. App. 295 ( 395 SE2d 634 ) (1990); where all the occupants of the car were arrested, Evans v. State, 216 Ga. App. 21, 22 (2) ( 453 SE2d 100 ) (1995); where the arresting officer testified he would have permitted a reasonable request for alternate disposition of the car, but the defe…
discussed Cited as authority (rule) Edwards v. State
Ga. Ct. App. · 1997 · confidence medium
According to the officer, he looked in the glove box for the insurance card rather than allowing Edwards to do so because Edwards was under arrest and “it’s safety precaution to go into the glove box at that time due to the fact that there could be a possible weapon in there, small gun or knife.” “The Supreme Court has recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” (Citations and punctuation omitted.) Evans v. State, 216 Ga. App. 21, 23 (2) ( 453 SE2d 100 ) (1995).
cited Cited as authority (rule) State v. Banks
Ga. Ct. App. · 1996 · confidence medium
Evans v. State, 216 Ga. App. 21, 23 ( 453 SE2d 100 ).
cited Cited as authority (rule) Anderson v. State
Ga. Ct. App. · 1996 · confidence medium
Evans v. State, 216 Ga. App. 21, 24 (3) ( 453 SE2d 100 ) (1995); Lawal v. State, 201 Ga. App. 797 (2) ( 412 SE2d 864 ) (1991).
discussed Cited as authority (rule) Strickland v. State
Ga. Ct. App. · 1996 · confidence medium
“When the purported waiver of [the] right [to a jury trial] is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly. . . .” (Punctuation omitted.) Evans v. State, 216 Ga. App. 21, 24 (3) ( 453 SE2d 100 ) (1995).
discussed Cited as authority (rule) State v. Whitfield
Ga. Ct. App. · 1995 · confidence medium
An officer may conduct a brief investigatory stop of a vehicle if such stop is justified by “specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” Evans v. State, 216 Ga. App. 21, 23 (2) ( 453 SE2d 100 ) (1995).
discussed Cited "see" Paul Arthur Bowler v. State (2×)
Ga. Ct. App. · 2020 · signal: see · confidence high
See Evans v. State, 216 Ga. App. 21, 23-24 (2) ( 453 SE2d 100 ) (1995) (probable cause to arrest for loitering where, among other things, occupants of car were driving around parking lot for 45 minutes without entering a store and made misleading claims to officer).
discussed Cited "see" In Re Jb (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
(Emphasis supplied) [22] Thomas, 301 Ga.App. at 202 (1), 687 S.E.2d 203 (punctuation omitted); see Walker, 299 Ga. App. at 790-91 (1), 683 S.E.2d 867 (holding that defendant's apparent nervousness in the presence of a group of police officers, even in a known drug area, does not provide a basis for a reasonable articulable suspicion). [23] At the hearing, one of the investigating officers testified that J.B. was "fast pace walking," and that while it appeared J.B. had at one point been running, the officer conceded that he had "never seen him run." [24] See Black, 281 Ga.App. at 44 (1), 635 S.…
examined Cited "see" In the Interest of R. C. (3×) also: Cited "see, e.g."
Ga. Ct. App. · 2008 · signal: see · confidence high
See Evans v. State, 216 Ga. App. 21, 22 (1) ( 453 SE2d 100 ) (1995).
discussed Cited "see" Bolick v. State (2×)
Ga. Ct. App. · 2000 · signal: see · confidence high
See Evans v. State, 216 Ga. App. 21, 24 (2) ( 453 SE2d 100 ) (1995).
discussed Cited "see" State v. King (2×)
Ga. Ct. App. · 1999 · signal: see · confidence high
See Evans v. State, 216 Ga. App. 21, 24 (2) ( 453 SE2d 100 ) (1995).
discussed Cited "see" Stephens v. State (2×)
Ga. Ct. App. · 1998 · signal: see · confidence high
See Evans v. State, 216 Ga. App. 21, 24 (3) ( 453 SE2d 100 ) (1995).
discussed Cited "see" Kennon v. State (2×)
Ga. Ct. App. · 1998 · signal: see · confidence high
See Evans v. State, 216 Ga. App. 21, 22 (1) ( 453 SE2d 100 ) (1995) (possession of screwdrivers, pliers, and various car keys combined with act of casing a parking lot sufficient to prove offense).
discussed Cited "see" McCormick v. State (2×)
Ga. Ct. App. · 1996 · signal: see · confidence high
See Reid, supra. The cases cited by the State to the effect that a knowing and voluntary waiver of jury trial may be shown by “extrinsic evidence” (see Evans v. State, 216 Ga. App. 21, 24 (3) ( 453 SE2d 100 ) and Cooper v. State, 189 Ga. App. 286 ( 375 SE2d 505 )) are inapplicable here, as there is no such “extrinsic evidence” in this case.
discussed Cited "see, e.g." In the Interest of J. B. (2×)
Ga. Ct. App. · 2012 · signal: compare · confidence medium
Compare Evans v. State, 216 Ga. App. 21, 23 (2) ( 453 SE2d 100 ) (1995) (holding that defendant’s loitering, which entailed slowly circling a shopping center parking lot for 45 minutes in his car, pausing next to certain cars, and never parking to enter any stores, provided officers with articulable suspicion to justify a second-tier stop); Hansen v. State, 168 Ga. App. 304, 305-06 (1) ( 308 SE2d 643 ) (1983) (holding that defendant parking his car not in a parking space but near the exit of an apartment complex in which he did not reside and crouching down next to another car that he did no…
discussed Cited "see, e.g." Wingfield v. State (2×)
Ga. Ct. App. · 1997 · signal: see also · confidence medium
See also Evans v. State, 216 Ga. App. 21, 24 (3), 25 ( 453 SE2d 100 ) (1995). *450 Decided May 13, 1997.
discussed Cited "see, e.g." Pirkle v. State (2×)
Ga. Ct. App. · 1996 · signal: compare · confidence medium
Compare Evans v. State, 216 Ga. App. 21, 24 (3) ( 453 SE2d 100 ) (1995) (affidavit of attorney showing deliberate, intelligent waiver); Sims, supra at 480 (1) (affidavit of attorney showing deliberate, intelligent waiver).
discussed Cited "see, e.g." Keegan v. State (2×)
Ga. Ct. App. · 1996 · signal: compare · confidence medium
Compare Evans v. State, 216 Ga. App. 21, 24-25 (3) ( 453 SE2d 100 ) (1995), in which the State produced an adequate affidavit.
examined Cited "see, e.g." State v. Wright (4×)
Ga. Ct. App. · 1996 · signal: compare · confidence low
Compare Cunningham v. State, 216 Ga. App. 283 ( 454 SE2d 176 ) and Evans v. State, 216 Ga. App. 21 ( 453 SE2d 100 ) (articulable suspicion where vehicle driving with defective headlight).
Evans
v.
the State; Tinch v. the State
A94A2563, A94A2595.
Court of Appeals of Georgia.
Jan 6, 1995.
453 S.E.2d 100
Bert W. Cohen, for appellant (case no. A94A2563)., Joan P. Davis, for appellant (case no. A94A2595)., Thomas J. Charron, District Attorney, Debra H. Bernes, Amy H. McHesney, W. Thomas Weathers III, Assistant District Attorneys, for appellee.
Johnson, Beasley, Andrews.
Cited by 43 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #47,639 of 633,719
Citer courts: Court of Appeals of Georgia (2)
Johnson, Judge.

Derek Evans and Christopher Tinch appeal from their convictions, rendered by a judge sitting without a jury, of criminal attempt to enter an automobile.

1. Evans and Tinch claim there was insufficient evidence that they took a substantial step toward entering an automobile. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. In determining whether there was sufficient proof of a substantial step, we must review the evidence in the light most favorable io the verdict. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Crumbley v. State, 207 Ga. App. 33, 34 (427 SE2d 27) (1993). Viewed in this light, the evidence shows Evans, Tinch and Jermaine Corbitt discussed stealing stereo equipment from automobiles; they were in possession of screwdrivers, pliers and various car keys; Tinch drove the trio in his car to a mall parking lot to find a car to break into; they slowly drove through the parking lots of the mall[*22] and two other nearby shopping centers for approximately forty-five minutes, but left without entering an automobile because they were being followed by a pickup truck, which they later learned was occupied by undercover police officers.

Contrary to the claim of Evans and Tinch, this evidence was sufficient to support the court’s finding that they took a substantial step toward entering an automobile with the intent to commit a theft. See OCGA § 16-8-18. “In order to constitute the offense of attempt to commit a crime, the accused must do some act towards its commission. Commission means the act of committing, doing, or performing; the act of perpetrating. Mere acts of preparation, not proximately leading to the consummation of the intended crime, will not suffice to establish an attempt to commit it. To constitute an attempt there must be an act done in pursuance of the intent, and more or less directly tending to the commission of the crime. In general, the act must be inexplicable as a lawful act, and must be more than mere preparation. Yet it cannot accurately be said that no preparations can amount to an attempt. It is a question of degree, and depends upon the circumstances of each case. The substantial step language of OCGA § 16-4-1 shifts the emphasis from what remains to be done to what the actor has already done. The fact that further steps must be taken before the crime can be completed does not preclude such a finding that the steps already undertaken are substantial. In addition to assuring firmness of criminal purpose, the requirement of a substantial step will remove very remote preparatory acts from the ambit of attempt liability and the relatively stringent sanctions imposed for attempts.” (Citations and punctuation omitted.) Smith v. State, 189 Ga. App. 27, 29-30 (1) (375 SE2d 69) (1988).

Evans’ and Tinch’s discussion regarding the theft of a car stereo and their possession of tools to aid in the commission of such a theft, without more, would not have amounted to an attempt to enter an automobile, but merely would have been preparatory acts not proximately leading to the consummation of the crime of entering an automobile. Evans and Tinch, however, went beyond these remote acts of preparation when they drove to the shopping center parking lots in search of a specific car to enter. Taken as a whole, the acts of Evans and Tinch were done in pursuit of their intent to enter an automobile for the purpose of stealing stereo equipment and those acts directly tended to the commission of that crime. See Adams v. State, 178 Ga. App. 261, 263-264 (2) (b) (342 SE2d 747) (1986); compare R. L. T. v. State, 159 Ga. App. 828 (285 SE2d 259) (1981). The trial court therefore did not err in finding Evans and Tinch guilty beyond a reasonable doubt of criminal attempt to enter an automobile.

2. Evans and Tinch argue the court erred in denying their motion to suppress all evidence seized by the police after the stop of Tinch’s[*23] car because the police did not have reasonable suspicion to stop the car or probable cause to arrest them. At the outset, we note the police officers validly stopped the car based on their observation that Tinch was operating it with a defective headlight. See Barnett v. State, 204 Ga. App. 491, 492 (1) (420 SE2d 43) (1992). Moreover, “an officer may conduct a brief investigative stop of a vehicle, [but] such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.” (Citations and punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993).

In the instant case, the officers suspected that the occupants of Tinch’s vehicle were loitering or prowling. “A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.” OCGA § 16-11-36. The officers’ suspicions that Tinch and his passengers were in the parking lots in a manner not usual for law-abiding citizens and under circumstances causing concern for the safety of motor vehicles in the lots were not unparticularized hunches, but were based on specific, articulable facts. The officers testified Tinch’s car slowly circled through the shopping center parking lots for 45 minutes without parking; none of the car’s occupants entered a store; the car slowed down and its occupants closely looked at a Volkswagen Cabriolet, a type of car that is often stolen; and a high number of automobile thefts and break-ins had occurred in the shopping center parking lots. Because the officers’ stop of Tinch’s automobile was based on reasonable suspicion and not mere caprice, it was valid. See generally Anthony v. State, 211 Ga. App. 622, 625-626 (4) (441 SE2d 70) (1993).

After stopping the car, the officers found a long-bladed screwdriver in Evans’ coat pocket during an appropriate pat-down search of the trio for weapons. “The Supreme Court has ‘recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.’ [Cit.]” Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991). Also during the stop, Evans, Tinch and Corbitt claimed they had been in the mall parking lots for only five minutes, directly contradicting the officers’ personal observations that the trio had been circling the lots for forty-five minutes.[*24] The discovery of the screwdriver and the misleading claims of Evans, Tinch and Corbitt as to how long they had been in the parking lots, coupled with their prior suspicious activity, provided the officers with probable cause to arrest the trio for loitering and prowling and for possession of tools for the commission of a crime. See OCGA § 16-7-20; Hansen v. State, 168 Ga. App. 304, 306 (2) (308 SE2d 643) (1983).

After arresting Evans, Tinch and Corbitt, the officers impounded Tinch’s car and conducted an inventory search of it, discovering more screwdrivers, pliers and various car keys. “Inventory searches have been upheld because they serve three legitimate interests: (1) protection of the property while in custody; (2) protection of the police from potential dangers; and (3) protection of the police against claims of lost or stolen property. Justification of such a search, however, is premised upon the validity of the impoundment of the vehicle. Impoundment of a vehicle is valid only if there is some necessity for the police to take charge of the property. Where the impoundment is unreasonable the resulting inventory search is invalid.” (Citations and punctuation omitted.) Williams v. State, 204 Ga. App. 372, 373 (419 SE2d 351) (1992). Here, the impoundment of the vehicle was necessary because all three of its occupants had been arrested; no one remained to take custody of the car and remove it from the side of the interstate. See Hansen v. State, supra at 306 (3). The inventory search of the car was therefore valid. Because the officers’ search and seizure of the vehicle and its occupants were valid, the trial court did not err in denying the motion to suppress of Evans and Tinch. See Castellon v. State, 200 Ga. App. 478, 480 (3) (408 SE2d 493) (1991).

3. Tinch claims the court erred in denying his motion for a new trial because he did not knowingly and intelligently waive his right to a jury trial. “While the defendant must personally and intelligently participate in the waiver of the right to trial by jury, there is no legal precedent which requires that the waiver be done in court.” (Emphasis, citation and punctuation omitted.) Cooper v. State, 189 Ga. App. 286, 287 (2) (375 SE2d 505) (1988). “When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” (Punctuation omitted.) White v. State, 197 Ga. App. 162 (398 SE2d 35) (1990). In the instant case, the state presented extrinsic evidence in the form of an affidavit from Tinch’s trial counsel. The attorney swore that he and Tinch discussed the advantages and disadvantages of trial by jury and trial by the court, and Tinch decided to proceed without a jury for tactical reasons. This affidavit was sufficient evidence that Tinch personally, in[*25] telligently and voluntarily waived his right to a jury trial. See Sims v. State, 167 Ga. App. 479, 480 (1) (306 SE2d 732) (1983).

Decided January 6, 1995. Bert W. Cohen, for appellant (case no. A94A2563). Joan P. Davis, for appellant (case no. A94A2595). Thomas J. Charron, District Attorney, Debra H. Bernes, Amy H. McHesney, W. Thomas Weathers III, Assistant District Attorneys, for appellee.

Judgments affirmed.

Beasley, C. J., and Andrews, J., concur.