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Cooper v. State

Court of Appeals of Georgia, First Division

June 2, 2017

COOPER
v.
THE STATE.

          BARNES, P. J., MCMILLIAN and MERCIER, JJ.

          Barnes, Presiding Judge.

         Following 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.[1] 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.

         On 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.

         On 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 omitted.) Id.

         Viewed 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.

         The 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 him.

         Cooper 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.

         1. Cooper contends that the evidence was insufficient to sustain his convictions. We do not agree.

         In this 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).

          Having 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).

         To the 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.

          2. 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 guilt, ...


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