                               THIRD DIVISION
                                BARNES, P. J.,
                            BOGGS and BRANCH, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                               http://www.gaappeals.us/rules/


                                                                    October 21, 2014




In the Court of Appeals of Georgia
 A14A0928. KENEMER v. THE STATE.

      BOGGS, Judge.

      James Gregory Kenemer was convicted with a codefendant of possession of

tools for the commission of a crime, theft by taking, and criminal trespass.1 His

motion for new trial was denied, and he files this out-of-time appeal, asserting as his

sole enumeration of error the insufficiency of the evidence with respect to his

conviction for possession of tools for the commission of a crime. We find the

evidence sufficient and affirm.

      In reviewing the sufficiency of the evidence,




      1
       The jury found Kenemer not guilty of possession of a controlled substance and
possession of a firearm while in possession of a controlled substance. The State nol
prossed the charge of possession of a firearm by a convicted felon.
      the relevant question is whether, after viewing the evidence in the light
      most favorable to the prosecution, any rational trier of fact could have
      found the essential elements of the crime beyond a reasonable doubt.
      This familiar standard gives full play to the responsibility of the trier of
      fact fairly to resolve conflicts in the testimony, to weigh the evidence,
      and to draw reasonable inferences from basic facts to ultimate facts.
      Once a defendant has been found guilty of the crime charged, the
      factfinder’s role as weigher of the evidence is preserved through a legal
      conclusion that upon judicial review all of the evidence is to be
      considered in the light most favorable to the prosecution.


(Citations and footnote omitted; emphasis in original.) Jackson v. Virginia, 443 U. S.

307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

      So viewed, the evidence shows that around 2:30 a.m. on September 13, 2010,

an employee of a hauling company called the police when he discovered two men in

the act of taking metal from storage containers in the back yard of the business. The

men removed the metal with the aid of flashlights and placed it in the back of a small

red pickup truck. They left the scene before the police arrived, but were stopped a

short distance away while still within sight of the employee. An officer with the

Dalton Police Department testified that the driver, whom he identified as Kenemer,

and his passenger were placed under arrest after a “felony traffic stop” based on the

“theft-related call” from the witness. A search of Kenemer revealed a “wire cutter

                                           2
type plier tool” in his pocket; on the passenger floorboard of the truck the police

found another pair of wire cutters, a flashlight, a lantern which was “open and turned

on,” and a pair of work gloves with the name “Kenemer” on them. There was mud on

the wire cutters, the seat, and the truck tires, and the gloves were “somewhat wet and

damp . . . like they’d been used recently.” The officer testified, based on his

experience, that he had encountered gloves, wire cutters, and flashlights while

investigating crimes in the past, that those items were primarily associated with

property crimes as opposed to “person type crimes,” and that they were consistent

with the crime he was investigating in this case.

      OCGA § 16-7-20 (a) provides: “A person commits the offense of possession

of tools for the commission of crime when he has in his possession any tool,

explosive, or other device commonly used in the commission of burglary, theft, or

other crime with the intent to make use thereof in the commission of a crime.”

Kenemer was charged with possessing “gloves, lights, and cutting tools, devices

commonly used in the commission of a crime, to wit: theft, with the intent to make

use thereof in the commission of said crime.”

      Kenemer relies on several cases to contend that the tools he possessed were not

shown to be “commonly used in the commission of a crime,” but those decisions are

                                          3
inapposite here. Burnette v. State, 168 Ga. App. 578, 580 (2) (b) (309 SE2d 875)

(1983), contrary to Kenemer’s assertion, was not decided on the issue of whether the

household tools found in Burnette’s truck were “commonly used.” We expressly

declined to rely on that point, and instead held that “assuming for the sake of

argument that such tools are commonly used to commit burglaries, there is no

evidence in the instant case to show that appellant possessed such tools with the

intent to use them in the commission of a crime.” (Emphasis supplied.) Id.2 And the

decision has been distinguished frequently on this second element of OCGA § 16-7-

20, because “[i]n Burnette, the tools were rusty, no evidence was adduced that they

had been used recently, and the . . . premises showed no sign of forcible entry.”

Ranson v. State, 198 Ga. App. 659, 660 (2) (402 SE2d 740) (1991) (full concurrence

in Div. 2).

      Here, as in Ranson, the tools were in the cab of the truck and they showed signs

of recent use, “thereby indicating that the tools had been used to” commit the theft.

198 Ga. App. at 661 (2). See also Anderson v. State, 264 Ga. App. 362, 363-364 (1)


      2
       The following statement in Burnette is mere dicta: “While it is true that such
items could be used in the commission of a burglary, we are not prepared to hold that
such tools are ‘commonly used in the commission of burglary,’ as required by §
16-7-20 (a).” Id. at 580 (2) (b).

                                          4
(590 SE2d 729) (2003) (distinguishing Burnette; tools loose on floor of vehicle and

appliance in house had been moved and opened to facilitate cutting of wires); Manous

v. State, 205 Ga. App. 804, 805 (1) (423 SE2d 721) (1992) (same; glass cutter, lock

picks, screwdriver and gloves connected with appellant and signs of forced entry);

Moore v. State, 197 Ga. App. 9, 10 (1) (397 SE2d 477) (1990) (same; fresh scratches

on doorframe although, officer also testified that screwdrivers “were popular for use

in burglaries)). Alternatively, a showing of intent may be made by evidence, as here,

that an individual was observed using one or more of the tools while committing the

crime. See Spradlin v. State, 279 Ga. App. 638, 640-641 (2) (631 SE2d 828) (2006)

(two men observed cutting security chain; bolt cutters found in front seat of truck

occupied by appellant and a companion); Jenkins v. State, 259 Ga. App. 47, 51 (2) (a)

(576 SE2d 300) (2002) (appellant carried flashlight during burglary).

      Kenemer also specifically attacks the police officer’s testimony in this case as

inadequate to show “common” use. We take this opportunity to clarify an issue that

has been tacitly acknowledged in the many cases construing OCGA § 16-7-20, but

never directly addressed.

      In the vast majority of cases construing this Code section, whether a tool is

commonly used in the commission of a crime is “within the ken of the average juror.”

                                          5
Norwood v. State, 265 Ga. App. 862, 864-865 (2) (595 SE2d 537) (2004) (jury could

determine from tools admitted into evidence whether they were “burglary tools”); cf.

Miller v. State, 292 Ga. App. 641, 642-643 (2) (666 SE2d 35) (2008) (“whether or not

a cut is consistent with having been made by a sharp instrument” within ken of jury.)

In such cases, expert testimony is not required, and jurors are entitled to use their

knowledge and experience to decide both elements set out in the Code section –

common use and intent.

      Of course, there are some cases in which this general rule does not apply. On

the one hand, it is probable (although we need not decide the question here) that

lockpicks, “slim jims,” blackjacks, masks, and similar items are “commonly used” for

the commission of crime as a matter of law. In fact, wire cutters and gloves have been

explicitly held to “satisfy the first element [of the statute] as they are commonly used

in the commission of burglary, theft, or other crimes. [Cits.]” Kennon v. State, 232

Ga. App. 494, 496 (3) (502 SE2d 330) (1998). On the other hand, some items are so

specialized, Nyane v. State, 306 Ga. App. 591, 592 (1) (703 SE2d 53) (2010)

(bulletproof vest), or so widely used in completely unrelated ways, Garrett v. State,

263 Ga. App. 310 (587 SE2d 794) (2003) (pieces of two-by-four lumber), that their



                                           6
common use in crime – or even that they are “tools” or “devices” – is not within the

ken of the average juror and expert testimony to that effect may be required.3

      But this is not such a case. Here, it was well within the jury’s ability to

determine both whether the tools were “commonly” used in the commission of a

crime, and whether Kenemer had the necessary intent to use them in that manner.

Photographs of the items, separately and in their original locations in the truck, as

well as some of the items themselves were admitted into evidence, and the jury could

determine whether they were commonly used in crime. In Norwood v. State, supra,

265 Ga. App. at 864-865 (2), the defendant contended that the State failed to prove

that bolt cutters found in a vehicle near his seat were a tool commonly used in crime,

and that no evidence was presented that he possessed a crowbar or that the crowbar

was used in the burglary at issue. We held that the bolt cutter was “entered into

evidence and viewed by the jury. The evidence was sufficient for the jury to find that

these items were burglary tools.” (Citations and footnote omitted.) The evidence here

is likewise sufficient.

      3
        Kenemer also argues that the officer’s testimony that, in his experience, the
tools in question were used “primarily” in property crimes does not establish that the
tools were “commonly” used in the commission of the crime at issue. But such
parsing of language is not necessary where, as noted above, this question was within
the knowledge of the average juror and expert testimony was unnecessary.

                                          7
Judgment affirmed. Barnes, P. J., and Branch, J., concur.




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