Bacon v. State, 548 S.E.2d 78 (Ga. Ct. App. 2001). · Go Syfert
Bacon v. State, 548 S.E.2d 78 (Ga. Ct. App. 2001). Cases Citing This Book View Copy Cite
35 citation events (35 in the last 25 years) across 1 distinct court.
Strongest positive: Dimitrious Gordon v. State (gactapp, 2024-10-25)
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 15 distinct citers.
discussed Cited as authority (rule) Dimitrious Gordon v. State
Ga. Ct. App. · 2024 · confidence medium
That was the jury’s prerogative[, and] [w]e will not go behind it. 7 The trial court’s preliminary instructions included a charge that “[t]he State has the burden to prove each essential element of the crime charged beyond a reasonable doubt.” The court’s final jury charge also included instructions that “[t]he burden of proof rests upon the State to prove beyond a reasonable doubt the identity of this defendant as the person who committed the crime alleged in this bill of indictment” and that the burden of proof to show that the defendant was present “at the scene of the crime…
discussed Cited as authority (rule) Frasier v. State
Ga. Ct. App. · 2009 · confidence medium
(Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 348-349 (1) ( 548 SE2d 78 ) (2001). (a) Frasier argues that the State failed to prove him guilty of battery because it failed to disprove his affirmative defense of justification.
discussed Cited as authority (rule) Smith v. State
Ga. Ct. App. · 2005 · confidence medium
Atwill, Assistant District Attorney, for appellee. 1 Lewis v. State, 247 Ga. App. 808, 809 (1) ( 545 SE2d 381 ) (2001). 2 Collins v. State, 253 Ga. App. 899, 900 (1) ( 560 SE2d 767 ) (2002). 3 Tumlin v. State, 264 Ga. App. 565 ( 591 SE2d 448 ) (2003). 4 Sirmans v. State, 195 Ga. App. 835, 836 (3) ( 395 SE2d 307 ) (1990). 5 Lowery v. State, 264 Ga. App. 655, 656 (1) ( 592 SE2d 102 ) (2003). 6 Bacon v. State, 249 Ga. App. 347, 348 (1) ( 548 SE2d 78 ) (2001). 7 Rubaldino v. State, 271 Ga. App. 726, 728 (1) ( 611 SE2d 68 ) (2005). 8 Jordan v. State, 259 Ga. App. 551, 552-553 ( 578 SE2d 217 ) (2003…
discussed Cited as authority (rule) Morrison v. State
Ga. Ct. App. · 2005 · confidence medium
The exceptions to the rule are not applicable here. 18 (Footnote omitted.) Bacon v. State, 249 Ga. App. 347, 348-349 (1) ( 548 SE2d 78 ) (2001). 19 By failing to invoke a ruling on Morrison’s motion to dismiss, trial counsel waived that issue for purposes of appeal.
discussed Cited as authority (rule) Cannon v. State
Ga. Ct. App. · 2003 · confidence medium
Andrews, P. J., and Mikell, J, concur. 1 (Emphasis supplied.) 2 See Bacon v. State, 249 Ga. App. 347, 349 (1) (b) ( 548 SE2d 78 ) (2001); Jackson v. State, 239 Ga. App. 77, 80 (1) ( 519 SE2d 746 ) (1999). 3 See OCGA § 42-8-34.1 (b), formerly OCGA § 42-8-34.1 (a); see Couch v. State, 246 Ga. App. 106, 107 (2) ( 539 SE2d 609 ) (2000). 4 Cheatwood v. State, 248 Ga. App. 617, 621 (2) ( 548 SE2d 384 ) (2001). 5 Bearden v. Georgia, 461 U. S. 660, 667-668 (II) (103 SC 2064, 76 LE2d 221) (1983); Dickey v. State, 257 Ga. App. 190, 192 (1) ( 570 SE2d 634 ) (2002). 6 Bearden, supra at 668 ; Dickey, sup…
discussed Cited as authority (rule) O'CONNOR v. State
Ga. Ct. App. · 2002 · confidence medium
Drake v. State, 159 Ga. App. 606, 607 (2) ( 284 SE2d 109 ) (1981). 15 (Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 350 (2) ( 548 SE2d 78 ) (2001). 16 See Cunningham v. State, 244 Ga. App. 231, 233 (1) ( 535 SE2d 262 ) (2000).
discussed Cited as authority (rule) Smith v. State
Ga. Ct. App. · 2002 · confidence medium
However, the verdict form and sentencing sheet show that Smith was tried on three counts of theft by taking, but convicted on only two of those counts. 2 (Citations and punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) ( 490 SE2d 556 ) (1997). 3 (Punctuation and footnotes omitted.) Lovelace v. State, 241 Ga. App. 774, 775 (3) ( 527 SE2d 878 ) (2000). 4 (Citation and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) ( 523 SE2d 632 ) (1999). 5 Parker v. State, 226 Ga. App. 462, 466 (8) ( 486 SE2d 687 ) (1997). 6 Lovelace, supra at 776 (3) (b). 7 See OCGA § 16-8-2…
discussed Cited as authority (rule) MacK v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2002 · confidence medium
Pope, P. J., and Barnes, J., concur. 1 The State also charged Mack with aggravated stalking, but the trial court directed a verdict for Mack on this count. 2 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 3 (Citation and punctuation omitted.) Leigh v. State, 223 Ga. App. 726, 728 (2) ( 478 SE2d 905 ) (1996). 4 OCGA § 16-7-23 (a) (1). 5 (Citations and punctuation omitted.) Hayes v. State, 249 Ga. App. 857, 860 (1) ( 549 SE2d 813 ) (2001). 6 See Bacon v. State, 249 Ga. App. 347, 349 (1) (b) ( 548 SE2d 78 ) (2001). 7 Id. 8 Hayes, supra; see also Bacon, supra. 9 See Rash v. State, 182 Ga. App. 6…
discussed Cited as authority (rule) Harris v. State
Ga. Ct. App. · 2002 · confidence medium
The exceptions to the rule are not applicable here. 7 (Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 348-349 (1) ( 548 SE2d 78 ) (2001). 8 See Hamrick v. State, 197 Ga. App. 89, 92 (5) ( 397 SE2d 503 ) (1990).
discussed Cited as authority (rule) Trammell v. State
Ga. Ct. App. · 2002 · confidence medium
Smith, P. J., and Ellington, J., concur. 1 Bacon v. State, 249 Ga. App. 347, 348-349 (1) ( 548 SE2d 78 ) (2001). 2 OCGA § 24-4-8. 3 (Citation and punctuation omitted.) Murray v. State, 271 Ga. 504, 505 (1) ( 521 SE2d 564 ) (1999). 4 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 5 The defense specifically asked that the jury also be informed that a directed verdict of not guilty was entered as to a second count of child molestation against a separate victim, which was charged in the same indictment.
discussed Cited as authority (rule) Duncan v. State
Ga. Ct. App. · 2002 · confidence medium
“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.” (Punctuation and footnote omitted.) Bacon v. State, 249 Ga. App. 347, 349 (1) (a) ( 548 SE2d 78 ) (2001).
discussed Cited as authority (rule) Benefield v. State
Ga. Ct. App. · 2001 · confidence medium
Andrews, P. J., and Eldridge, J., concur. 1 See Blankenship v. State, 258 Ga. 43 -44 (2) ( 365 SE2d 265 ) (1988) (“Failure to object to the court’s ruling on whether or not a juror is qualified shall be a waiver of any such objection.”) (citations and punctuation omitted). 2 Bacon v. State, 249 Ga. App. 347, 349 (2) ( 548 SE2d 78 ) (2001). 3 (Citations and punctuation omitted.) Henderson v. State, 218 Ga. App. 311, 312 (2) ( 460 SE2d 876 ) (1995). 4 Ellison v. State, 242 Ga. App. 636, 638 (7) ( 530 SE2d 524 ) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 67…
discussed Cited as authority (rule) Burk v. State (2×)
Ga. Ct. App. · 2001 · confidence medium
Bacon v. State, 249 Ga. App. 347, 350 (3) ( 548 SE2d 78 ) (2001); Jacobson v. State, 201 Ga. App. 749, 752-753 (5) (b) ( 412 SE2d 859 ) (1991).
discussed Cited as authority (rule) Bruce v. State
Ga. Ct. App. · 2001 · confidence medium
Sheppard, Assistant District Attorney, for appellee. 1 Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 2 (Footnotes omitted.) Bacon v. State, 249 Ga. App. 347, 348-349 (1) ( 548 SE2d 78 ) (2001). 3 OCGA § 24-4-8 (“testimony of a single witness is generally sufficient to establish a fact”). 4 Powell v. State, 249 Ga. App. 344, 346 ( 548 SE2d 447 ) (2001). 5 (Emphasis supplied.) OCGA § 16-5-44.1 (b). 6 See Perkinson v. State, 273 Ga. 491 -492 ( 542 SE2d 92 ) (2001).
discussed Cited "see, e.g." Taylor v. State (2×)
Ga. Ct. App. · 2009 · signal: see also · confidence medium
In its charge, the trial court avoided the “must be decided by some jury” language rejected in Burchette v. State, 278 Ga. 1, 2 ( 596 SE2d 162 ) (2004). 30 Black v. State, 255 Ga. 668, 671 (2) ( 341 SE2d 436 ) (1986). 31 See Burchette, supra at 3 (polling of jury helped demonstrate that Mien charge was not coercive); Smith v. State, 275 Ga. App. 60, 65 (6) ( 619 SE2d 694 ) (2005) (fact that jury deliberated for approximately one hour after Mien charge before delivering verdict demonstrated that jurors did not rush to a conclusion). 32 (Citation and punctuation omitted.) Craft v. State, 254…
Bacon
v.
the State
A01A1110.
Court of Appeals of Georgia.
Apr 24, 2001.
548 S.E.2d 78
Hal T. Peel, for appellant., J. Thomas,Durden, Jr., District Attorney, Joe G. Skeens, Melissa L. Heifferon, Assistant District Attorneys, for appellee.
Eldridge, Andrews, Miller.
Cited by 16 opinions  |  Published
Eldridge, Judge.

An Evans County jury found Sham E. Bacon guilty of armed robbery pursuant to acts he and two co-defendants committed at the Sunrise Chevron gas station/convenience store on the corner of Firetower Road and Highway 280 in Hagan. [1] Bacon appeals by challenging the sufficiency of the evidence against him, by alleging ineffective assistance of trial counsel, by claiming error in the trial court’s charge to the jury, and by alleging error in the admission of evidence regarding the tracking of appellant by a law enforcement K-9. Finding these claims of error meritless, we affirm.

The trial evidence shows that Bacon and the two co-defendants were seen outside the Sunrise Chevron at approximately 4:00 a.m. on the incident date. Less than an hour later, two masked men entered the convenience store; one was wearing a rust-colored plaid jacket. One of the men brandished a shotgun and pointed it at the clerk. The clerk was too nervous to open the cash register, so the man came around the counter, grabbed the register, and ripped it off the[*348] counter. The two men fled the store carrying the cash register; the clerk saw them run around the side of the Chevron and disappear in the back.

The police were called. Within the hour, a law enforcement K-9 tracking dog, based at the nearby Georgia State Prison, was brought to the scene. The bloodhound immediately picked up a “hot track” on the side of the store where the robbers fled; the dog “hit” on a human scent, “and maybe six to ten feet in front of him there was some cash register tape, some change and some footprints.” Three distinctive sets of footprints led directly from the Chevron down Firetower Road; from the look of the tracks, the three suspects appeared to be running.

The bloodhound followed the three sets of tracks to Ponderosa Road, a dirt road that branched off Firetower Road. The tracks led to a residence identified as 131 Ponderosa Road. Bacon and the two co-defendants were inside. The dog then followed the same three sets of tracks to a pond behind the residence. A section of weeds on the bank of the pond was matted down, as if recently disturbed. More cash register tape and coinage were found there, as well as receipts from the Sunrise Chevron. Law enforcement dragged the pond, and the cash register was recovered about 30 feet from the bank. Pursuant to consent, the police obtained the shoes that each of the suspects wore on the night of the incident. The tread on Bacon’s shoes matched one of the sets of tracks; the tread on the co-defendants’ shoes matched the other two sets of tracks. In addition, a rust-colored plaid jacket was recovered from the residence where the suspects were located.

During the defense case-in-chief, Bacon did not testify, but he called to the stand the owner of 131 Ponderosa Road who testified that Bacon and the other co-defendants were asleep in the house at 5:00 a.m. Held'.

1. In his first two enumerations of error, Bacon challenges the sufficiency of the evidence introduced against him, claiming that such (a) was circumstantial, and (b) failed to disprove his “affirmative alibi defense.”

In that regard, any challenge to the sufficiency of the evidence supporting a jury’s verdict of guilty must be viewed to uphold the verdict. [2] Since a jury found Bacon guilty, this Court looks only to see if there is a factual basis from which a rational trier of fact could conclude beyond a reasonable doubt that a guilty verdict was warranted. We do not judge the credibility of the witnesses. We do not revisit conflicts in the evidence. And we will not simply substitute our opinion for that of the jury. So long as there is some competent evidence[*349] to support each element of the offense(s) as charged, the jury’s verdict will be upheld. [3]

(a) We find that sufficient evidence was presented from which a jury could find beyond a reasonable doubt that Bacon was a party to the armed robbery of the Sunrise Chevron. While the evidence is circumstantial, it directly links Bacon to the robbery itself, to the flight with the cash register, to the disposal of the cash register in the pond, and to the coverup of the crime. “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.” [4] The evidence in this case, though circumstantial, supports the jury’s verdict.

(b) An “affirmative defense” is one in which a defendant admits the act but seeks to justify, excuse, or mitigate it. [5] With an “affirmative defense,” the focus no longer becomes the act, itself, since such is admitted. Instead, the State’s burden becomes the introduction of evidence that disputes, i.e., “disproves,” the defendant’s alleged justification/excuse for the act.

That is not the case, however, with an alibi defense wherein a defendant does not admit the act and where the State assumes no further evidentiary burden than what it takes to prove its case. A defendant may choose to put forward evidence of alibi, but the jury may reject such evidence in favor of the State’s proof of the indicted act. This determination is simply a resolution of conflicting evidence, a traditional role of the jury. Here, the jury heard Bacon’s defense of alibi and rejected it in favor of the State’s evidence. That was the jury’s prerogative. [6] We will not go behind it.

2. Bacon contends the trial court’s charge to the jury was erroneous in that the court stated, “the dog identified the charged defendant.”

Any challenge to the trial court’s charge has been waived by the failure to object or to preserve such for review upon direct request by the trial court for objections to the charge. [7] Moreover, Bacon’s claim of error with regard to the charge is substantively meritless since the trial court’s charge in its entirety reads “the fact that the dog has identified the charged defendant is not proof of guilt but merely some evidence that the party’s track had been at the place where the crime was committed.” (Emphasis supplied.) Thereafter, the trial court[*350] charged on the notion that “mere presence” at the scene of a crime is insufficient to demonstrate guilt. “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” [8] Considered as a whole, the trial court’s charge fully and adequately informed the jurors of the correct legal principles.

3. We reject Bacon’s claim of ineffective assistance of counsel based on trial counsel’s alleged failure to preserve errors by making specific objections. To prevail on a claim of ineffective assistance of counsel, a defendant must show both error and prejudice. A reviewing court need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order. [9] Here, Bacon fails utterly to demonstrate any prejudice other than by making the statement that “Mr. Bacon argues that each of these failures to preserve error for review has prejudiced his case on appeal, and thát effective trial counsel would have taken steps to preserve such possible errors on appeal.” Such conclusory statement, unsupported by reasons or authority, does not establish prejudice so as to prove ineffective assistance of counsel. [10] A trial court’s determination that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous. [11] On the claim before us, we will not find as clearly erroneous the trial court’s determination that Bacon received effective assistance of counsel.

4. Bacon contends the trial court erred in permitting testimony from Georgia Bureau of Investigation Special Agent Edwards that the “bloodhounds, upon their arrival, were able to find what they determined to be a hot track.” Bacon claims that Edwards was not qualified to give an opinion on bloodhounds. This contention is without merit. Edwards was present when the bloodhound arrived and testified as to what he witnessed. Further, pretermitting error in such testimony, the dog handler from Georgia State Prison, Larry Sikes, testified to precisely the same fact, and he was imminently qualified to do so. “Evidence is harmless where admissible evidence of the same fact is before the jury.” [12]

Judgment affirmed.

Andrews, P. J., and Miller, J., concur. [*351] Decided April 24, 2001. Hal T. Peel, for appellant. J. Thomas,Durden, Jr., District Attorney, Joe G. Skeens, Melissa L. Heifferon, Assistant District Attorneys, for appellee.
1

Co-defendant Darrell Jovan Sallie pled guilty to armed robbery on September 30, 1999, and co-defendant Malik Rashun Crawford pled guilty to theft by taking on September 26, 2000.

2

Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3

McLeod v. State, 245 Ga. App. 668-669 (1) (538 SE2d 759) (2000).

4

Foster v. State, 273 Ga. 34, 35 (537 SE2d 659) (2000).

5

Brown v. State, 267 Ga. 350, 351 (1) (478 SE2d 129) (1996).

6

Walton v. State, 242 Ga. App. 639, 641 (530 SE2d 531) (2000).

7

Conger v. State, 245 Ga. App. 399-400 (2) (537 SE2d 798) (2000).

8

(Citations and punctuation omitted.) Sharpe v. State, 272 Ga. 684, 688-689 (6) (531 SE2d 84) (2000).

9

Rogers v. State, 195 Ga. App. 446, 447 (2) (394 SE2d 116) (1990).

10

Turner v. State, 245 Ga. App. 294 (536 SE2d 814) (2000).

11

Ross v. State, 231 Ga. App. 793, 795-796 (1) (499 SE2d 642) (1998).

12

(Punctuation omitted.) Mullinax v. State, 242 Ga. App. 561, 563 (1) (530 SE2d 255) (2000).