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Hammock v. State

Witnesses' testimony about what they observed on a surveillance videotape was not hearsay.

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Michael Hammock was convicted of theft by taking an automobile. He appeals, challenging the sufficiency of the evidence and the effectiveness of his trial counsel. We find the evidence sufficient to sustain the conviction. In so finding, we disapprove our earlier decision, In re C. G. , 261 Ga. App. 814, 815 584 SE2d 33 2003, to the extent that it deems testimony describing nonverbal conduct depicted on a surveillance videotape to be hearsay. We also find that trial counsel’s performance was not deficient. We therefore affirm. 1. On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Darnell v. State , 257 Ga. App. 555, 556 1 571 SE2d 547 2002. We do not weigh the evidence or determine the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.

So viewed, the evidence shows that between 3:00 p.m. and 4:00 p.m. on April 22, 2008, Hammock cashed a check at a convenience store in Bartow County and then lingered there for several hours. Sometime after 7:00 p.m., Amy Ellison arrived at the store, put gas in her car and went inside to buy beer, leaving her keys in the car. Ellison, Hammock and store owner Jitendak Patel were the only people inside the store. Hammock cut in front of Ellison at the checkout counter, bought a candy bar and walked out the door. A minute or so later, Ellison went outside and discovered that her car was missing. Ellison and Patel called the police. Ellison, Patel and an officer watched a surveillance videotape, which showed a man walking out of the store, getting into the car and driving away from the scene. All three of them identified Hammock as the man shown on the videotape.

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