BARNES, P. J., MCMILLIAN and MERCIER, JJ.
Barnes, Presiding Judge.
the denial of his motion for new trial, Jacquez M. Cooper
appeals his convictions for armed robbery, aggravated assault
and possession of a firearm or knife during the commission of
a felony. He was sentenced to twenty years, to serve
twelve, for the robbery conviction, a concurrent sentence of
twenty years probation for the assault conviction, and a
consecutive five-year sentence of probation for the
possession of a firearm or knife conviction.
appeal, Cooper contends that the evidence was insufficient to
sustain his convictions, and that the trial court's
charge on inference of guilt based on recent possession of
stolen property was unconstitutional as applied to his case,
was an improper comment on his guilt, and was in direct
conflict with other jury charges. Cooper also contends that
trial counsel was ineffective, and that the trial court erred
in charging on accomplice liability.
appeal from a criminal conviction, we view the evidence in
the light most favorable to the verdict, and the defendant no
longer enjoys a presumption of innocence. Harris v.
State, 307 Ga.App. 847, 847 (706 S.E.2d 702) (2011).
This Court "does not weigh the evidence or judge the
credibility of the witnesses but only determines whether the
evidence to convict is sufficient under the standard of
Jackson v. Virginia [443 U.S. 307 (99 S.Ct. 2781, 61
L.Ed.2d 560) (1979)]". (Citation omitted.) Krauss v.
State, 263 Ga.App. 488, 488 (1) (588 S.E.2d 239) (2003).
Any conflicts in the testimony of the witnesses "are a
matter of credibility for the jury to resolve. . . . So long
as there is some competent evidence, even though
contradicted, to support each element of the State's
case, the jury's verdict will be upheld." (Citations
in this light, the evidence demonstrates that on October 7,
2014 at approximately 1:30 a.m., the victim, who was homeless
and walking toward an overpass where he planned to sleep for
the night, approached two men who were standing on the
sidewalk. One man appeared to be arguing with someone on his
cell phone, and the other man was standing nearby. As he
walked passed them, one of the men pulled out a 9 millimeter
pistol and struck the victim in the head. The man followed
the victim as he stumbled away into the street, and pointed
the gun at the victim and ordered him on the ground. The man
on the cell phone did not follow them into the street, but
stayed on the sidewalk and did not intervene. The man asked
for his wallet, but the victim did not have one, so the man
demanded his backpack. The victim saw the man "quickly
walk away across the street, " and heard a gunshot,
but did not see who fired the gun.
victim called 911 and responding officers noted that the
victim appeared very upset and that his face was bloody. An
officer responding to a BOLO (be on the lookout) for the
suspects, located two men that matched the victim's
description about a half-mile away from the crime scene. The
men were sweating and out of breath when police stopped them,
and one of them, later identified as Cooper, was wearing a
backpack that matched the description of the one stolen from
the victim, and was also in possession of a 9 millimeter
pistol. Cooper told police that he found the backpack and gun
on the side of the road. The victim was taken to the scene,
where he positively identified his backpack, the contents,
and the two robbers. He also identified Cooper as the man who
robbed him and assaulted him at trial. The victim also told
police that the men took $25 from his person, but later
admitted that he had lied and that no money was stolen from
and the other man, later identified as Michael Odus, were
indicted for armed robbery, aggravated assault, and
possession of a firearm or knife during the commission of a
felony. Following a joint trial, at which Odus testified, and
Cooper did not, Cooper was found guilty of all charges, and
Odus was acquitted.
Cooper contends that the evidence was insufficient to sustain
his convictions. We do not agree.
case, the victim identified Cooper as one of the two robbers,
and as the robber who had struck him with a gun. See OCGA
§ 24-14-8 ("The testimony of a single witness is
generally sufficient to establish a fact.") Moreover,
within minutes of the 911 call, Cooper was apprehended a
short distance from the attack in possession of the
victim's backpack and a 9 millimeter pistol. Even if, as
Cooper argues, the victim only assumed that Cooper was the
one who struck him because he was in possession of the gun,
"[c]ircumstantial evidence of identity may be sufficient
to enable a rational trier of fact to find a defendant guilty
beyond a reasonable doubt." Onumah v. State,
313 Ga.App. 269, 272 (3) (721 S.E.2d 115) (2011).
considered the evidence above as well as other evidence
presented at trial under the standard appropriate for our
review, we find it sufficient beyond a reasonable doubt to
prove that Cooper was the perpetrator of the crimes charged.
Jackson v. Virginia, 443 U.S. 307 (99 S.C. 2781, 61
L.Ed.2d 560) (1979).
extent that Cooper maintains that the trial court did not
properly exercise its discretion as the thirteenth juror in
weighing the evidence, the trial court's statements in
its order denying the motion for new trial specifically noted
that, in acting as the thirteenth juror pursuant to OCGA
§ 5-5-20 and OCGA § 5-5-21, it "reviewed the
record and [found] that the verdict is neither contrary to
the law or the evidence; in fact, the court finds the verdict
is decidedly supported by the weight of the evidence."
See OCGA §§ 5-5-20 and 5-5-21; Walker v.
State, 292 Ga. 262 (2) (statutes "afford the trial
court broad discretion to sit as a 'thirteenth juror'
and weigh the evidence on a motion for new trial alleging
these general grounds.") (punctuation and citation
omitted.) "A trial judge's denial of a motion for
new trial on evidentiary grounds will be reversed on appeal
only if there is no evidence to support the verdict."
(Citation and punctuation omitted)Parker v. State,
244 Ga.App. 419, 421 (2) (535 S.E.2d 795) (2000). We discern
no such abuse in this case.
Cooper contends that the trial court's charge on
inference of guilt based on recent possession of stolen
property was unconstitutional as applied to his case because
it required him to provide a reasonable explanation for his
possession of the property and thus dispel an inference of