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Bayo v. State

Court of Appeals of Georgia

October 29, 2014

BAYO
v.
THE STATE

Effective assistance of counsel. Forsyth Superior Court. Before Judge Dickinson.

Judgment affirmed.

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, Heather N. Dunn, Assistant District Attorney, for appellee.

MILLER, Judge. Doyle, P. J., and Dillard, J., concur.

OPINION

Page 612

Miller, Judge.

Following a bench trial, Moustapha Bayo was convicted of one count of aggravated assault (OCGA § 16-5-21 (b) (1)) and one count of kidnapping (OCGA § 16-5-40 (a)).[1] Bayo appeals from the denial of his new trial motion, contending that his trial counsel rendered ineffective assistance. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the record in the light most favorable to the verdict.[2] So viewed, the evidence shows that Bayo was the general manager of an IHOP restaurant owned by Joe Scripture. Scripture owns ten IHOP restaurants in the metro Atlanta area. Bayo was first hired as a server in 2003 and he worked his way up to general manager of Scripture's South Cobb IHOP. In March 2010, Scripture loaned Bayo $1,000 so that Bayo could attend his mother's memorial service.

In early May 2010, Bayo's supervisor noticed that Bayo was not making the required daily cash deposits from the South Cobb IHOP to the bank. Bayo's supervisor confronted Bayo about the missing deposits, and Bayo told him that he used the missing deposits to pay his rent. Bayo's supervisor then went to the South Cobb IHOP and discovered that all of the money from the previous shift was missing from the safe. Surveillance footage showed Bayo taking the money out of the safe and placing it in his pocket. Bayo's supervisor reported the theft to Scripture and the Cobb County police, and Bayo was terminated.

A few days later, on May 13, 2010, Scripture was at his office in Forsyth County around 9:00 a.m. Bayo came into Scripture's office and said, " This is no joke. You're dead mother fucker. I'm here to kill you." Bayo was upset that he had been fired from his job. Bayo was holding a brown bag, and his hand was inside the bag. There [329 Ga.App. 390] appeared to be something inside the bag, and Scripture believed it was a gun. Bayo was agitated and yelling, and he ordered Scripture to lie down on the floor, which Scripture did. Bayo, who was still holding the bag, then

Page 613

ordered Scripture to stand up and said, " We're going to walk down the hallway, if you try anything funny, if you make a move you're a dead man."

On Bayo's orders, Scripture walked down the hallway and out of his office building into the parking lot. Bayo ordered Scripture into Scripture's truck and told Scripture to drive. Scripture got into the driver seat, and Bayo got into the back seat. Bayo then ordered Scripture to call his wife and have her bring Bayo $250,000 within one hour or Scripture would be a dead man. ...


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