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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] ...


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