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Mathews v. State

The continuing witness rule did not apply to a crime videotape which was a true depiction of the event, contained no audio and did not substitute for testimony at defendant's trial.

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This appeal is from Robert Lee Mathews conviction for the offense of burglary. Viewed in the light most favorable to the verdict,1 the evidence shows that on November 27, 2001, Mathews and two friends were in the Quick Serve located at 406 Nathan Dean Parkway, Rockmart, Polk County, Georgia. Frances Pinkard, the manager of the Quick Serve, and Misty Gentry, assistant manager, were outside hanging Christmas Lights. Mathews and his friends were inside the Quick Serve sitting at a table eating some snacks and playing the lottery game “Quick Cash” by picking out numbers on the television provided by the store. Entering the store, Pinkard walked down the aisle that led to the elevated office area located at the back of the store to retrieve some hooks for the lights she was hanging and saw someone fumbling with something in front of her desk. Pinkard continued down the aisle and when she reached the end she encountered Mathews getting up from his hands and knees at the entry to the office area.

Pinkard testified that in addition to $1200 in cash, cigarettes and lottery tickets were stored in the office area. Pinkard and Gentry testified that items were out of place on their respective desks; that a drawer in Gentry’s desk was open; and that two cigarette boxes had been knocked over and gone through. Because she was concerned that something might have been taken, Pinkard instructed Gentry to stop the videotape recording of the surveillance camera and to call the police. The videotape showed Mathews on his hands and knees both going into the office area and in the office area, and showed him going through desks, cabinets, and boxes of stored items, including some boxes of cigarettes.

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