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Hogan v. State

Court of Appeals of Georgia

February 4, 2015

HOGAN
v.
THE STATE

Page 780

Armed robbery, etc. Bibb Superior Court. Before Judge Self.

Jonathan P. Waters, for appellant.

K. David Cooke, Jr., District Attorney, Dorothy V. Hull, Assistant District Attorney, for appellee.

OPINION

Page 781

Dillard, Judge.

Following a jury trial, Dexter Hogan was convicted of armed robbery and possession of a firearm during the commission of a crime. Hogan appeals his convictions and the denial of his motion for a new trial, arguing that (1) the evidence was insufficient to support his [330 Ga.App. 597] convictions; (2) he received ineffective assistance of counsel; (3) the trial court erred by failing to, sua sponte, conduct a Jackson-Denno hearing; and (4) the trial court erred by not declaring a mistrial when the State failed to prove venue beyond a reasonable doubt. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury's verdict,[1] the record reflects that on August 26, 2010, Terry Hightower was visiting his elderly mother at her residence on Vineville Avenue in Macon, Georgia. That evening, after eating his mother's last (and highly prized) honey bun, Hightower walked to a nearby convenience store to replace it. Once he arrived at the store, he went inside and, while waiting to check out, two men in the back of the store caught his attention because they did not appear to be buying anything. Hightower made his purchase and left, but on his walk home, he encountered the men from the store. When they approached, the shorter of the two asked Hightower if he wanted to buy a DVD, and Hightower responded that he did not have any money to do so. After this exchange, Hightower continued walking to his mother's house, but when he reached Vineville Avenue, he heard the same two men yelling at him. Hightower turned around and immediately noticed that the shorter man was pointing a gun at his groin, and then the taller man took the gun and pointed it at his face. While Hightower was being held at gunpoint, the shorter man frisked him and took everything in his possession, which included one dollar, his wallet, and his cell phone.

After the men left, Hightower walked back to the store and called the police. During the investigation that followed, Hightower viewed a picture of the two men that was taken with the convenience store's security cameras, and he was " one hundred percent sure" that the men in the photo were the ones who robbed him. The detective who responded to the scene testified that, after publicizing the video footage from the store's security cameras, he identified the men as Hogan and Charles Ottman and arrested them a few days later. The detective also corroborated Hightower's testimony that there was a height disparity between the men by testifying that Hogan was several inches shorter than Ottman.

Subsequently, Hogan was charged with armed robbery and possession of a firearm during the commission of a crime.[2] After a jury [330 Ga.App. 598] trial, Hogan was convicted of both counts. Hogan filed a motion for a new trial, which the trial court denied. This appeal follows.

1. Hogan argues that the evidence was insufficient to support his convictions. We disagree.

To begin with, we note that when a criminal conviction is appealed, " the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence." [3] And, of course, in evaluating the sufficiency of the

Page 782

evidence, we do not " weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt." [4] Thus, we will uphold a jury's verdict so long as there is " some competent evidence, even though contradicted, to support each fact necessary to make out the State's case." [5] Bearing these guiding principles in mind, we turn now to Hogan's specific offenses.

(a) Armed Robbery.

Under OCGA § 16-8-41 (a), " [a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon."

In the case sub judice, the evidence shows that Hogan and Ottman followed Hightower on his way home from the convenience store and robbed him at gunpoint of his cash, wallet, and cell phone. And as to Hogan's role in the robbery, the evidence shows that he pointed a gun at Hightower's groin and then took all of his possessions while Ottman pointed the gun at Hightower's face. Nevertheless, Hogan maintains--without further explanation--that the evidence was " vague and ambiguous at best" as to whether he was identified from the convenience-store footage or from the crime scene. This argument is a nonstarter. Hightower plainly testified that he was one hundred percent sure that Hogan was one of the robbers. Given the foregoing, the evidence was sufficient to convict Hogan of armed robbery.[6]

[330 Ga.App. 599] (b) Possession of a Firearm During the Commission of a Crime.

Under OCGA § 16-11-106 (b) (1), " [a]ny person who shall have on or within arm's reach of his or her person a firearm ... during the commission of, or the attempt to commit any crime against or involving the person of another" commits the offense of possession of a firearm during the commission of a crime. And given our holding in Division 1 (a) supra (i.e., that the evidence was sufficient to show that Hogan used a firearm to commit armed robbery), we likewise find that the evidence was sufficient to show that Hogan possessed a gun while committing the crime of robbery.[7]

2. Next, Hogan argues that his trial counsel was ineffective for failing to object to the admission of his custodial statement to a police officer. Again, we disagree.

At the outset, we note that in evaluating claims of ineffective assistance of counsel, we apply the two-pronged test established in Strickland v. Washington.[8] Under this test, the appellant first must show that counsel's performance was deficient and, second, that he was prejudiced by counsel's deficient performance.[9] Moreover, there is a " strong presumption that trial counsel's performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered

Page 783

sound trial strategy." [10] In applying the second prong, the question is whether " there exists a reasonable probability that, but for his counsel's errors, the jury would have had reasonable doubt regarding appellant's guilt, that is, but for counsel's unprofessional errors, the result of the proceeding would have been different." [11]

When the voluntariness of a confession is questioned on the trial of a criminal case it is " necessary under the decision in Jackson v. Denno [[12]] ... to have a separate hearing as to the voluntariness before [330 Ga.App. 600] it is finally presented to the jury for consideration as to its voluntariness." [13] Here, in his statement to police, Hogan admitted to being in the convenience store with Ottman on the night of the robbery, but he repeatedly denied any involvement in the crime, claiming that he left the area before the robbery happened. And when asked why Ottman would have implicated him in the robbery, Hogan told police that Ottman was lying because Hogan was sleeping with Ottman's wife. Hogan also denied owning a gun, but claimed that he saw Ottman with one.

Before the admission of this statement at trial, the trial court asked the parties if it should conduct a Jackson-Denno hearing, and Hogan's trial counsel responded that such a hearing was not necessary because, in his statement, Hogan denied any involvement in the crime. Later, the court repeated its question about the necessity of a Jackson-Denno hearing, and Hogan's counsel reiterated that such a hearing was unnecessary because Hogan's statement was a denial of any wrongdoing, not a confession.

At the motion-for-new-trial hearing, trial counsel testified that he did not challenge the admission of Hogan's custodial statement because, in the statement, Hogan denied any involvement in the crime, and the admission of the statement would obviate the need for Hogan to testify and be subjected to cross-examination. Further, counsel testified that he discussed the matter with Hogan, and it was part of their trial strategy for the jury to hear Hogan denying involvement in the robbery shortly after it occurred.

Thus, trial counsel's decision not to challenge the admission of Hogan's custodial statement was based upon a reasonable trial strategy of allowing the jury to hear that Hogan denied committing the robbery shortly after it occurred, instead of Hogan giving the same testimony at trial where he would be subjected to cross-examination. As such, Hogan cannot show that his counsel was ineffective for failing to request a Jackson-Denno hearing or otherwise challenge the admission of this evidence.[14] Furthermore, Hogan [330 Ga.App. 601] has made no showing that his custodial statement was involuntary or that it would have been excluded if a hearing had taken place. Therefore, he cannot demonstrate that he was prejudiced by counsel's decision not to request a Jackson-Denno hearing.[15]

Page 784

3. In a related claim, Hogan argues that the trial court erred by failing to conduct a Jackson-Denno hearing sua sponte to determine the admissibility of his custodial statement. This claim is likewise without merit.

Generally, Jackson-Denno hearings are required to determine the voluntariness of an incriminating custodial statement, but no such hearing was required here because in Hogan's statement he vehemently denied any involvement in the crime.[16] And even if Hogan's statement had been incriminating, the trial court did not err in failing to hold a hearing sua sponte because Hogan did not challenge the admission of his statement at trial or assert that it was involuntarily made.[17] In fact, the trial court twice asked Hogan if he wanted a Jackson-Denno hearing, and he declined both offers. Moreover, Hogan cannot show that the trial court erred by failing to hold such a hearing when he has made no proffer of what evidence he would have offered to show that his statement was involuntary.[18] Thus, the trial court was not required to conduct a Jackson-Denno hearing sua sponte.

[330 Ga.App. 602] 4. Lastly, Hogan argues that the trial court erred by failing to declare a mistrial based on the State's failure to prove proper venue. Once again, we disagree.

To begin with, we note that whether to declare a mistrial is in the discretion of the trial court and will not be disturbed on appeal unless " it is apparent that a mistrial is essential to the preservation of the right to a fair trial." [19] Further, we have explained that the Georgia Constitution requires that " venue in all criminal cases be laid in the county in which the crime was allegedly committed." [20] Of course, the standard of review is whether, " considered in the light most favorable to the prosecution, the State proved the essential element of venue beyond a reasonable doubt." [21] And in this respect, our Supreme Court has held that " [v]enue may be proven by both direct and circumstantial evidence." [22] Finally, whether the evidence as to venue satisfied the reasonable-doubt standard is " a question for the jury, and its decision will not be set aside if there is any evidence to support it." [23]

Here, a detective with the Macon Police Department testified that he responded to Hightower's call reporting an armed robbery

Page 785

at a convenience store located in " Macon, Bibb County, Georgia." Further, Hightower testified that the robbery occurred on Vineville Avenue, and evidence showed that the convenience store was at the intersection of Vineville Avenue and Hardeman Avenue. And given the detective's testimony that the convenience store was located in Bibb County; the close proximity between the store and the street where the robbery occurred; [24] that the detective worked for the City of Macon, which he described as being in Bibb County; [25] and that [330 Ga.App. 603] Hogan never claimed that he crossed county lines when he walked from the convenience store to the location of the robbery,[26] there was sufficient circumstantial evidence to prove venue beyond a reasonable doubt.

For all of the foregoing reasons, we affirm Hogan's convictions.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.


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