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Lopez v. State

Court of Appeals of Georgia

July 6, 2015

LOPEZ
v.
THE STATE

Armed robbery, etc. Gwinnett Superior Court. Before Judge Tom Davis.

Debra Kay Jefferson, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Michael D. Morrison, Assistant District Attorneys, for appellee.

BARNES, Presiding Judge. Ray and McMillian, JJ., concur.

OPINION

Page 803

Barnes, Presiding Judge.

Following a jury trial, Toni Antonio Lopez was convicted of armed robbery, burglary and six counts of false imprisonment. He appeals from the denial of his motion for new trial, contending that the evidence was insufficient and that his trial counsel was ineffective for failing to raise an affirmative defense. Following our review, we affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility, but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). " This same standard applies to our review of the trial court's denial of [Lopez's] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Footnotes omitted.) Stephens v. State, 247 Ga.App. 719 (545 S.E.2d 325) (2001).

So viewed, the evidence shows that on February 2, 2007, police were dispatched at approximately 10:30 p.m. to a reported home invasion. One of the victims testified that he had heard a knock on the door, peered through the blinds, and saw two people dressed in black, one with his head covered. The victim, who was the homeowner's co-worker, lived at the residence with the homeowner, the homeowner's pregnant wife, her brother, and the homeowners' two children. When the co-worker told the wife about the men, she became frightened and called the police. She also called her husband, who was on his way home from work, to tell him about the men outside their home. The men outside attempted to open the door, and the wife shut herself inside her bedroom with her seven-year-old daughter.

When the homeowner arrived home from work, two men approached him and pointed a gun at his head. They told him to give them the " money and the drugs," and told him to unlock the door to the home or that they would kill him. The men took the homeowner into the kitchen, threw him on the floor, and again demanded money and drugs, while holding a gun at his head. The wife had heard her husband's cell phone ring inside the home when she called him, so she [332 Ga.App. 764] opened her bedroom door and saw that two men were inside with her husband, and one of the men had a gun pointed at her husband's head. The men took the homeowner and his co-worker into the bedroom, made them kneel on the floor, and tied their hands with shoelaces. The robbers then took the homeowner and co-worker back into the kitchen and again demanded money. The homeowner noticed that two more robbers had come into the home, and had tied up his brother-in-law and his visiting friend in another bedroom.[1]

A short time later, the homeowner saw lights outside the home, and the robbers began to panic and said that " [t]here are people outside." As the robbers ran and attempted to escape, the homeowner untied himself and opened the door for the police. As one of the officers entered the home, he pursued a robber running toward the back of the house, and as he gave chase, a masked man came into the hallway. The officer pushed the masked man to the ground, and continued after the fleeing robber. After a struggle, a second officer secured the masked man who had been pushed to the ground, who was later identified as Lopez.

One of the robbers escaped, but police arrested Lopez and two other men in the

Page 804

house, in addition to another man who was discovered nearby and suspected of driving the get-away car. The escaped robber was later identified and arrested on the same charges. Lopez told police that he was not involved in the home invasion, but that, instead, he had gone to the victims' ...


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