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Clemente v. State

Court of Appeals of Georgia

March 11, 2015


Armed robbery. Gwinnett Superior Court. Before Judge T. Davis.

Judgment affirmed.

Lucas O. Harsh, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

MCMILLIAN, Judge. Phipps, C. J., and Ellington, P. J., concur.


Page 791

McMillian, Judge.

Doble Martinez Clemente was tried, along with two co-defendants,[1] by a jury and convicted of armed robbery.[2] Clemente now appeals the denial of his motion for new trial, as amended, contending that the evidence was insufficient to support his conviction. We disagree and affirm.

Viewed in the light most favorable to the verdict,[3] the evidence shows that on February 2, 2007 at approximately 10:30 p.m., two masked gunmen confronted Rogelio Pineda-Orrozquieta at gunpoint outside his home at 708 Sheffield Road in Norcross and demanded money and drugs. After entering his home, the men forced Pineda-Orrozquieta into a bedroom along with his pregnant wife, young daughter, and a co-worker. Pineda-Orrozquieta and the co-worker were forced to kneel on the floor, and their hands were bound. Pineda-Orrozquieta also saw two additional intruders in another bedroom tying the hands of his brother-in-law and his friend. The intruders apparently believed

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Pineda-Orrozquieta was in possession of money from the sale of drugs and continued to demand money. When officers from the Norcross Police Department arrived in response to a 911 call placed by Pineda-Orrozquieta's wife, they apprehended [331 Ga.App. 85] three intruders and seized two handguns. Shortly thereafter, police learned from the victims that there was a fourth man involved and within minutes began searching the surrounding area.

Officers Todd Bureta and Donald Butynski found Clemente, who was wearing dark clothes and talking on a cell phone, walking on Lancelot Drive, a street that runs parallel to Sheffield Drive.[4] Clemente initially told officers that he had been driving a car that had been taken by " three black males." At first he claimed he was driving a Mercedes and then said it was a BMW, but could not say exactly what make the vehicle was. Clemente was the only individual the police found walking the streets at that time of night. Officers brought Clemente to the incident location, but the victims told police they were unable to identify any of the intruders because they had all been wearing ski masks. At that time, officers noticed a silver BMW with a Florida temporary tag parked in the driveway of an abandoned house next door. When they pressed the button of the BMW key ring they had found in Clemente's pocket, it unlocked the BMW's doors and turned its interior lights on. Police were able to see a black ski mask inside the BMW.

After Clemente was arrested and advised of his Miranda rights, he gave a statement to the police[5] in which he claimed that he drove up from Tampa, Florida the day before with his friend Samuel Melendez in a BMW.[6] They were looking for some painting work because he needed money. He met two of the other individuals apprehended by police the night he and Melendez arrived in Atlanta and the third the following day. He told police he did not know where the five of them were going that evening, but Melendez told him to drive the BMW because they were going someplace " to do a job." He claimed that he parked in the driveway of the abandoned house next to 708 Sheffield Drive and stayed in the car while the other four men went next door. He denied knowing anything about guns until Melendez came out of the house and threw a shotgun at him and told him to hide it.[7] Clemente admitted to jumping a fence and hiding the shotgun, and he later returned to the scene with officers to show them exactly where he had hidden the shotgun behind some bushes a few [331 Ga.App. 86] houses down. Police located another ski mask and a set of gloves hidden with the loaded shotgun.[8]

In his sole enumeration of error, Clemente asserts the evidence was not sufficient to support his conviction for armed robbery as a party to the crime. When a criminal defendant challenges the sufficiency of the evidence supporting his conviction, " 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." (Citations omitted.) McNeal v. State, 326 Ga.App. 429, 429 (756 S.E.2d 660) (2014).

Under Georgia law, a person may be convicted of a crime even if he does not directly commit the crime but, instead, " [i]ntentionally aids or abets in the commission of the crime; or ... [i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime." OCGA § 16-2-20 (b) (3) and (4). And, " [w]hether a person

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was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed." (Citation and punctuation omitted.) Flournoy v. State, 294 Ga. 741, 745 (3) (755 S.E.2d 777) (2014).

Clemente argues that his mere presence near the scene of the armed robbery is insufficient to sustain his conviction. " It is, of course, true that mere presence or association, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction." (Citation and punctuation omitted.) Newsome v. State, 324 Ga.App. 665, 667 (1) (751 S.E.2d 474) (2013). However, whether Clemente was a party to the crimes and aided and abetted the other four men in the armed robbery or intentionally advised, encouraged, or counseled them, is a question for the jury. See Buruca v. State, 278 Ga.App. 650, 652 (1) (629 S.E.2d 438) (2006).

And, contrary to his assertions, the State presented evidence demonstrating more than Clemente's mere presence. Clemente told police he drove the BMW that night and that they went to 708 Sheffield Road, at 10:30 p.m., to " go look for some money." And although Clemente claimed he believed they were going to be painting, Officer Andrew Whaley testified that at the time of his arrest, Clemente was wearing gray pants, a " camo" shirt, and a green jacket, and had nothing that would indicate he was a painter. Clemente also admitted to hiding a shotgun after police arrived before fleeing from the scene.

[331 Ga.App. 87] In addition, Martinez, one of the co-defendants tried with Clemente, testified at trial and admitted to entering the house, though he claimed he thought they were only going there to buy cocaine.[9] He also testified that Clemente was an active participant who held the shotgun when they walked over to the house.[10] According to Martinez, he and Clemente waited in the back yard until Clemente got a call from one of the other men who told Clemente to send Martinez inside to help look for the drugs. Clemente continued to wait with the shotgun outside the house. There is sufficient evidence from which a jury could find that Clemente was a designated " lookout" or a " getaway" driver for the group, and thus, was a party to the crime of armed robbery. See Buruca, 278 Ga.App. at 652 (1) (finding sufficient evidence to sustain defendant's conviction of armed robbery). See also Johnson v. State, 299 Ga.App. 706, 708 (1) (a) (683 S.E.2d 659) (2009) (getaway driver who waits for his co-defendants to return to the car is also guilty of his co-defendant's crimes).

We likewise reject Clemente's assertion that the State failed to exclude every reasonable hypothesis except his guilt as required by former OCGA § 24-4-6.[11] To support a verdict, circumstantial evidence need exclude only reasonable hypotheses. See McNeal, 326 Ga.App. at 432 (1) (" In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant's guilt, but only reasonable hypotheses." ) (citation omitted; emphasis in original). And whether circumstances are sufficient to exclude every reasonable hypothesis is a question for the jury, and " that finding will not be disturbed unless the verdict

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of guilt is insupportable as a matter of law." (Citation omitted.) Wright v. State, 302 Ga.App. 332, 333 (690 S.E.2d 654) (2010). Given the record in this case, we cannot say that the jury's guilty verdict is insupportable as a matter of law. Moreover, Clemente's conviction was supported by direct evidence through the testimony of Martinez. See [331 Ga.App. 88] State v. Canup, 300 Ga.App. 678, 682 (2), n. 3 (686 S.E.2d 275) (2009) (reasonable hypothesis rule applies only when the evidence against the accused is entirely circumstantial). And although Clemente argues that he had no knowledge that any criminal activity was going to take place, " it was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence." (Citation and punctuation omitted.) Bighams v. State, 296 Ga. 267, 268-269 (1) (b) (765 S.E.2d 917) (2014).

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur.

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