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Davis v. State

Court of Appeals of Georgia

July 22, 2014

DAVIS
v.
THE STATE

Reconsideration denied August 6, 2014 -- Cert. applied for.

Armed robbery, etc. Polk Superior Court. Before Judge Howe, Senior Judge.

Andrew S. Fleischman, for appellant.

Jack Browning, Jr., District Attorney, Matthew S. Nestrud, Assistant District Attorney, for appellee.

ELLINGTON, Presiding Judge. Phipps, C. J., concurs. McMillian, J., concurs in Division 2 and in judgment only in Division 1.

OPINION

Page 729

Ellington, Presiding Judge.

A Polk County jury found Reginald Davis guilty beyond a reasonable doubt of armed robbery, OCGA § 16-8-41 (a); kidnapping, OCGA § 16-5-40; hijacking a motor vehicle, OCGA § 16-5-44.1; and theft by taking, OCGA § 16-8-2. Following the denial of his motion for a new trial, Davis appeals, contending that the evidence was insufficient as to venue and that the trial court erred in denying his motion for a mistrial which was based upon testimony he claims constituted [328 Ga.App. 797] an improper comment upon his choice to remain silent. For the reasons explained below, we affirm.

Viewed in the light most favorable to the jury's verdict,[1] the record shows the following. On August 24, 2011, Davis enlisted the help of his co-defendant, Marquita Alford, and another woman in his plan to rob the victim. Knowing that the victim was interested in having sex with the other woman, Alford offered to arrange a meeting between the victim and the other woman, who acted as " bait." When the victim arrived in his car at the agreed time to pick up Alford and the other woman, the women were walking on South Martiele Street, between Davenport Street and Cleo Street, in Cedartown. Alford got in the back seat, and the other woman got in the front seat. Davis was waiting in the same block in his own car with the engine running, ready to follow.

Just after the victim picked up the two women, Alford told the victim to drop her off on Cleo Street, which was the next cross street. The victim turned left onto Cleo Street and pulled over just before reaching the next corner at Estes Street. The other woman left the car and Davis entered the car, holding a gun. Davis pointed the gun at the back of the victim's head and directed the victim's driving until they reached a more secluded area. After telling the victim to stop the car, Davis and Alford took money, jewelry, and a cell phone from the victim while Davis continued to point the gun at him. After robbing the victim, Davis and Alford took the victim's car, stranding him in some woods, and drove back toward Cedartown.

1. Davis contends that the State failed to prove that he committed the charged offenses in Polk County and that, as a result, the evidence was insufficient to prove venue.

The standard for review of the sufficiency of the evidence to support a criminal conviction is whether after viewing the evidence

Page 730

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. The review of the sufficiency of the evidence to support venue is no different because venue is an essential element ...

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