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Lingo v. State

Court of Appeals of Georgia

November 12, 2014

LINGO
v.
THE STATE

Robbery. Gwinnett Superior Court. Before Judge Warren Davis.

Michael S. Marr, for appellant.

Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.

DOYLE, Presiding Judge. Miller, J., concurs. Dillard, J., concurs in judgment only.

OPINION

Page 697

Doyle, Presiding Judge.

James Lingo appeals his conviction for robbery,[1] arguing that the trial court erred by admitting evidence of his gang affiliation. We agree, but nevertheless affirm because Lingo has failed to establish harm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no

Page 698

longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia,[[2]] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, we must uphold the jury's verdict.[3]

So viewed, the record shows that on January 14, 2012, middle schoolers Richard Dominguez and Donovan Martinez were approached at a Gwinnett County car wash by three males who asked to borrow a phone. One of the males pointed a knife at Dominguez and demanded his phone, another grabbed it, and then all three assailants ran. According to Dominguez, the man with the knife was white, wore a red and black varsity school jacket and a black baseball cap, had on a ski mask that covered the bottom half of his face, and had a centimeter long " open" star mark on his face below his left eye. Dominguez described the other two assailants as black males wearing gray hooded jackets. Martinez testified that two of the men were black and the third man, who wielded the knife, was white, wore a black ski mask over his mouth, a red varsity jacket, and a red hat, and had a star under one of his eyes.

[329 Ga.App. 529] Police showed Dominguez a photographic lineup, which contained a photograph of Lingo taken before he got his tattoo; [4] Dominguez was unable to identify him. At a February 29, 2012 hearing, Dominguez initially identified Lingo, who was sitting at the defense table, as the white assailant, but clarified that he was not sure of his identification; at trial, however, Dominguez testified that Lingo was the white assailant. Martinez identified Lingo at trial as the assailant who wielded a knife during the robbery.

On January 25, 2012, teenager Patrick Reed was walking through the parking lot of the Club Lakes apartment complex in Gwinnett County when a male grabbed him from behind and put him in a choke hold. Another man approached, and the two began punching Reed, threw him to the ground, and kicked him. One of the men directed the other to get Reed's phone and check his pockets. One of the men took money from Reed, but the assailants fled when someone came out of his or her home before the assailants could wrestle Reed's phone from him. According to Reed, the man who initially grabbed him was white, wore a red hat, red jacket, and green tennis shoes, and he had a star tattoo under his left eye; the other man was black and wore a navy blue jacket. A police officer investigating a separate incident in the late afternoon on January 25, 2012, saw Lingo in the Club Lakes apartment complex wearing a red jacket and a red baseball cap. Reed was unable to identify the assailants from a photographic lineup, but he identified Lingo as one of the assailants in a subsequent court proceeding in February 2012.

On January 27, 2012, Reed's sister was driving through the Club Lakes apartment complex when she saw two men matching the description Reed gave of the men who assaulted him two days before. After calling Reed and confirming his description, she called the police, and followed the two men to a nearby market, where police arrived. Lingo, who was one of the men pointed out by Reed's sister, had a small tattoo under his left eye and was wearing red pants, red and black shoes, and a red Atlanta Braves cap. ...


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