ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.
Rossell was tried by a jury and convicted of two counts of
aggravated battery, armed robbery, possession of a firearm
during the commission of a felony (armed robbery), and
possession of a firearm by a convicted felon. On appeal,
Rossell contends that the trial court erred by denying his
motion to sever the offenses charged in the indictment. For
the following reasons, we affirm.
On appeal from a criminal conviction, we view the evidence in
the light most favorable to support the jury's verdict,
and the defendant no longer enjoys a presumption of
innocence. We do not weigh the evidence or judge the
credibility of the witnesses, but determine only whether the
evidence authorized the jury to find the defendant guilty of
the crimes beyond a reasonable doubt in accordance with the
standard set forth in Jackson v. Virginia, 443 U.S.
307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979).
(Citation and punctuation omitted.) Hall v. State,
335 Ga.App. 895 (783 S.E.2d 400) (2016).
viewed, the evidence showed that on June 2, 2013, Rossell was
at an apartment in the Spalding Heights neighborhood. Rossell
and his girlfriend were arguing in the bathroom. The victim
went into the bathroom to ask the couple to leave, and
Rossell hit her. After the victim was hit, she "blacked
out" and fell down. When the victim woke up she noticed
that her lip was "busted all up, " and she had a
chipped tooth. The victim received five stitches. Based upon
the extent of the victim's injuries, an investigator with
the Spalding County Sheriff's Office obtained an arrest
warrant for Rossell for the offense of aggravated battery.
was arrested on the aggravated battery warrant on June 16,
2013 and brought to the Spalding County detention center.
Rossell was placed in a holding cell, and, at some point, a
corporal with the Spalding County Sheriff's office
observed a commotion and saw Rossell striking another inmate.
The inmate testified that he was sitting on the floor of the
cell when he felt Rossell approach him. The inmate asked
Rossell to "back up" and Rossell
"clocked" him right in the face. The inmate
suffered a fractured nose as a result of this altercation.
This incident was recorded and published to the jury.
27, 2013, it was alleged that Rossell was involved in a
fight, again in the Spalding Heights neighborhood, in which a
separate victim sustained facial contusions, abrasions,
swelling, and a concussion. However, Rossell was acquitted of
the charges pertaining to this incident.
final charged offense took place on July 6, 2013, again in
the Spalding Heights neighborhood. A deputy with the Spalding
County Sheriff's Office responded to a call in reference
to an armed robbery. When the deputy responded to Spalding
Heights, he spoke with the armed robbery victim who stated
that Rossell pulled a gun out of the waistband of his pants
and robbed him of $20. At some point, the deputy observed
Rossell open an apartment door and then suddenly close it.
The deputy knocked on the door of the apartment and spoke to
the renter of the apartment who indicated that Rossell was
inside. Rossell was located inside the apartment and a gun
was found in the room that Rossell was inhabiting. The renter
of the apartment denied ownership of the gun. Twenty dollars
was located on Rossell's person in the same denominations
as the money stolen from the victim.
was charged with the crimes relating to all four incidents in
the same indictment. On September 26, 2013, Rossell's
trial counsel filed a speedy trial demand pursuant to OCGA
§ 17-7-170. On the same date, his trial counsel also
filed a lengthy motions packet which included a one sentence
motion to sever offenses and parties. On February 6, 2014,
Rossell's trial counsel filed a motion for discharge and
acquittal pursuant to OCGA § 17-7-170 (b) and a hearing was
held on that motion three days prior to trial. After the
trial court indicated that it would take the motion for
discharge and acquittal under advisement, Rossell's trial
counsel filed, in open court, an amended, particularized,
motion to sever offenses. A hearing was held on Rossell's
motion to sever offenses and the trial court also took that
motion under advisement.
date of trial, the trial court denied both motions. The trial
court expressed its displeasure with inaccuracies in
Rossell's trial counsel's motion for discharge and
acquittal and noted that because it was the last week of the
term, it could not sever the offenses and also protect
Rossell's right to a speedy trial. Following his
conviction, Rossell filed a motion for new trial, which was
denied. This appeal follows.
contends that the trial court erred by denying his motion to
sever the offenses charged in the indictment.
Where criminal offenses are joined solely on the ground that
they are of the same or similar character, the defendant has
a right to have the offenses severed. However, where the
offenses are so similar that they show a common scheme or
plan or have an identical modus operandi, severance is
discretionary with the trial court. When exercising this
discretion, the trial court should consider whether, in light
of the number of offenses charged and the complexity of the
evidence, the fact-trier will be able to distinguish the
evidence and apply the law intelligently to each offense.
(Punctuation and footnotes omitted.) Evans v. State,
266 Ga.App. 405, 409 (2) (597 S.E.2d 505) (2004). "We
evaluate the trial court's decision on severance under an
abuse of discretion standard." (Footnote omitted.)
Harmon v. State, 2 ...