Jones v. State

168 Ga. App. 652 (1983)

310 S.E.2d 17

JONES v. THE STATE.

67206.

Court of Appeals of Georgia.

Decided October 27, 1983.

Earl A. Davidson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Wallace Speed, Assistant District Attorneys, for appellee.

BANKE, Judge.

Johnny Jones appeals his conviction of two charges of burglary. The two offenses were committed two months apart, both occurred in the morning, and both included single unit residences located in the Buckhead area of Atlanta, about four miles apart. Entrance to one dwelling was gained by breaking out a ground-floor window; entrance to the second was gained by breaking the windows of both an outside and inside door. In each instance, the property taken was jewelry. Held:

1. Appellant enumerates as error the denial by the trial court of a motion for severance of the offenses. Our Supreme Court has held it mandatory that the trial court, upon motion of the defendant, order a severance "where the offenses [have been] joined solely on the ground that they are of the same or similar character . . ." Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975). In the instant case, the offenses were not only of the same character, they were "so similar as to evidence a common plan or scheme and revealed an identical modus operandi." Davis v. State, 158 Ga. App. 549 (1), 550 (281 SE2d 305) (1981). Each would accordingly have been admissible to prove the other, and the trial court did not err in refusing to grant a severance. See Mack v. State, 163 Ga. App. 778 (1) (296 SE2d 115) (1982).

*653 2. Appellant further contends that a statement made by the prosecuting attorney during closing argument to the effect that the State's evidence had not been rebutted constituted an improper reference to his failure to testify. It is well established that the prosecuting attorney may argue that the state's evidence is uncontradicted, unrefuted, or unrebutted. See generally Smith v. State, 245 Ga. 205 (264 SE2d 15) (1980); Burgess v. State, 158 Ga. App. 593 (281 SE2d 337) (1981); Hampton v. State, 158 Ga. App. 324 (6) (280 SE2d 158) (1981). This enumeration of error is accordingly without merit.

Judgment affirmed. Deen, P. J., and Carley, J., concur.