Cert. applied for.
Armed robbery, etc. Cobb Superior Court. Before Judge Grubbs.
Ashleigh B. Merchant, James M. Miller, Chanco Schiffer, W. Thomas Kemp II, for appellant (case no. A14A0249).
Raina J. Nadler, for appellant (case no. A14A0250).
D. Victor Reynolds, District Attorney, Amelia G. Pray, Jason D. Marbutt, Assistant District Attorneys, for appellee.
McMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.
Duvalle Rene Minor and Robert Anthony Clayton were tried together and convicted of the crimes of armed robbery and criminal attempt to commit armed robbery arising out of the same incident. Minor and Clayton
appeal following the trial court's denial of their motions for new trial.
Viewed in the light most favorable to the verdict, the evidence shows that on the night of December 19, 2011, Jose Hernandez (" J. H." ) and Bardomiano Hernandez (" B. H." ) (collectively " the victims" ), were walking along a pathway off Franklin Road in Cobb County on their way home from the store when they were suddenly attacked by two men. The men were wearing black, or dark, clothes with long sleeves. Both men had hoodies or caps over their heads, and the shorter of the two men had a gun. As B. H. began to struggle with the shorter man, the man's hoodie fell, and the victims were able to see him and could identify his face and hair. The shorter man was trying to go through B. H.'s pockets, and when B. H. resisted, the man hit him in the face with the gun, causing him to fall to the ground. Meanwhile, the other, taller man stuck his hand in J. H.'s jacket pocket and grabbed his cell phone. J. H. started backing away, out of the darkness, because he could not tell if the taller man also had a weapon. J. H. saw a patrol car nearby and started shouting.
Meanwhile, Officer Jeremy Slatton of the Marietta Police Department, who was patrolling the area, saw a " scuffle" between two men on the side of Franklin Road. As he looked further, he saw another man standing over someone lying on the ground. At this point, the two perpetrators ran off, jumping a fence and running into a nearby apartment complex. Slatton turned his car around and reported the incident on his radio. When he came back, he saw two men on the side of the road pointing toward an apartment complex. Slatton looked in the direction the men were pointing and saw a man wearing black [328 Ga.App. 129] clothing jumping the fence into the apartment complex and another man was ahead of him, running through the complex.
The officer directed J. H. and B. H. to stay where they were, while he gave chase to the two men in his car. Slatton drove to the apartment complex to which the men had fled, exited his car, and ran after them. He saw them jumping another fence, but they were too far ahead, so he radioed their direction of travel to other officers who had arrived on the scene. Officer Steven Miller of the Marietta Police Department responded to Slatton's report of a robbery in progress, and when he arrived at the apartment complex, he saw two men with dark clothing jumping the fence from inside the apartment's pool area to a parking lot. Miller said the two matched Slatton's description and were running in the direction he had indicated. Miller detained the two men at gunpoint, and each one was placed in the back of a patrol car.
In the meantime, Slatton had returned to the crime scene to interview the victims. When he was notified that two suspects had been detained, he placed the victims in his patrol car and drove them to the apartment complex where the men were being held. The victims were asked, individually, if they could identify two men, who were each sitting in the back of a patrol car. Both victims were able to identify the shorter man because they had seen his face, but they were unable to identify the other man because his face had been covered during the robbery. At trial, Slatton identified the shorter man, who was identified by the victims, as Clayton and the other man as Minor.
Police later searched the area of the robbery, and although they never located a gun, Slatton was able to recover J. H.'s cell phone. He also discovered " a black, knit-like skull cap" on the ground just on the other side of the fence near the area where the suspects had jumped it. The cap had a slit cut in it, which would allow the wearer to see through the cap if it was pulled down over his face. Although hair samples taken from the inside of the cap did not match samples provided by Minor, the GBI scientist who tested the samples said that the hat also contained a number of hair fragments that were too short or otherwise not suitable for testing. He clarified that he could not definitively say that the hat had not been on Minor's head, only that, of the testable samples, he did not find any that matched Minor's hair.
Case No. A14A0249
1. Minor first asserts that the evidence was insufficient to support a finding of his guilt. He notes that the victims never [328 Ga.App. 130] identified him as one of the men who accosted them and the hairs in the skull cap did not match his.
On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979). This same standard applies to our review of the trial court's denial of [a] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
(Citation and punctuation omitted.) Favors v. State, 326 Ga.App. 373, 373-374 (1) (756 S.E.2d 612) (2014). " As long as there is some evidence, even though contradicted, to support each necessary element of the state's case, this Court will uphold the jury's verdict." (Citation omitted.) Heard v. State, 299 Ga.App. 44, 44 (1) (681 S.E.2d 701) (2009).
Furthermore, " [e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime." OCGA § 16-2-20 (a). Although mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred. If the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime.
(Citation omitted.) Kinsey v. State, 326 Ga.App. 616, 621-622 (2) (757 S.E.2d 217) (2014).
Here, although neither victim could identify Minor as a perpetrator of the crimes, " [c]ircumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty [328 Ga.App. 131] beyond a reasonable doubt." (Citations and punctuation omitted.) Sellers v. State, 325 Ga.App. 837, 842 (1) (a) (755 S.E.2d 232) (2014). Further, circumstantial evidence of a defendant's identity " need not exclude every conceivable inference or hypothesis -- only those that are reasonable. To set aside the conviction it is not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by somebody else." (Citations and punctuation omitted; emphasis in original.) Jordan v. State, 320 Ga.App. 265, 269 (1) (739 S.E.2d 743) (2013).
The victims testified that they were attacked by two men wearing black or dark clothes. Slatton also observed two men in dark clothes scuffling with the victims. A few moments later, he saw one of the men climbing over a fence and the other in front running through an apartment complex. Slatton drove straight to that complex and saw the men climbing another fence and running away. He radioed the direction of their flight to other officers, and Miller arrived within minutes of the crime to see two men wearing dark clothes climbing over a fence and fleeing together in the direction Slatton described. He arrested the two men, later identified as Clayton and Minor. Both victims positively identified Clayton as the man who scuffled with and tried to rob B. H. Although they could not identify Minor as the man who robbed J. H., the other perpetrator had worn a mask over his face, and police discovered a mask beside a fence that the two perpetrators had climbed. And even though the GBI was unable to match any hairs in the hat to Minor, other hair samples in the hat were not suitable for testing and the GBI scientist could not definitively eliminate the possibility that Minor had worn the hat. Under these circumstances, we find this evidence sufficient to support Minor's convictions beyond a reasonable doubt.
2. Minor also argues that his trial counsel was ineffective in failing to object to a misstatement of law in the trial court's charge to the jury.
(a) To prevail on his claim of ineffective assistance under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (III) (104 S.Ct. 2052, 80
L.Ed.2d 674) (1984), " [Minor] must show that [his] counsel's performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel's errors, the outcome of the trial would have been different." (Citations and punctuation omitted.) Anthony v. State, 317 Ga.App. 807, 813 (4) (732 S.E.2d 845) (2012). On appeal of a claim of ineffective assistance, " we accept the trial court's factual findings and credibility determinations unless they are clearly erroneous, while we independently apply the legal principles to the facts." (Citation and punctuation omitted.) Philpot v. State, 311 Ga.App. 486, 489 (3) [328 Ga.App. 132] (716 S.E.2d 551) (2011). Moreover, " [i]f a defendant fails to meet his burden on one prong of the two-prong test, then the other prong need not be reviewed by the Court." Barge v. State, 294 Ga. 567, 569 (2) (755 S.E.2d 166) (2014).
Minor argues that his trial counsel's performance was deficient in that he failed to object to the portion of the final jury charge in which the trial court instructed, " The burden of proof rests on the Defendant (sic) to prove every material allegation in the indictment and every essential element of the crime charged beyond a reasonable doubt." Minor asserts that this omission cannot be considered a matter of trial strategy, because his trial attorney testified at the hearing on his motion for new trial that he did not remember that charge being given and that had he noticed it, he would have brought it to the trial court's attention. The quoted charge is undoubtedly a misstatement of law, as denoted by the insertion of " (sic)" in the transcript. But pretermitting whether Minor's trial ...