MILLER, P. J., DOYLE and REESE, JJ.
jury trial, Demarri Scott was convicted of hijacking a motor
vehicleand two counts of aggravated
assault. Scott appeals the trial court's denial
of his subsequent motion for new trial, arguing that
insufficient evidence supports his convictions and that a
fatal variance exists between the indictment and the proof at
trial. For the reasons that follow, we affirm.
reviewing the sufficiency of the evidence,
the relevant question is whether, after viewing the evidence
in the light most favorable to the prosecution, any
rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. This
familiar standard gives full play to the responsibility of
the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Once a
defendant has been found guilty of the crime charged, the
factfinder's role as weigher of the evidence is preserved
through a legal conclusion that upon judicial review all of
the evidence is to be considered in the light most favorable
to the prosecution.
viewed, the evidence shows that on June 22, 2014, Yoni
Hernandez borrowed his cousin's minivan to purchase a
used iPhone from Monterio Young. Jose Cruz-Pantoja
accompanied Hernandez to Young's home in Clayton County.
When they arrived, Cruz-Pantajo noticed that the house had a
"bad vibe, " and he didn't feel safe going into
the house, so he elected to wait in the driveway "just
in case something happen[ed]." Hernandez approached the
house, and as he climbed the front steps to the home, he was
shoved into the front door of the house from behind. Young
and another man, both armed with guns, then forced Hernandez
to exit the house. Several other men with guns approached
Cruz-Pantajo from behind, and the men demanded the
victims' personal items. The assailants took
Cruz-Pantajo's wallet and phone and Hernandez's phone
and keys. Another man then approached Hernandez from behind,
hit him in the mouth with a gun, and then fled in a red car
with a Hispanic man who ordered Hernandez into the house.
Young and another man left in Hernandez's cousin's
than 20 minutes later, Petrine Bennett, a former
sheriff's deputy, was at home approximately four miles
from the robbery when she heard a loud noise and went outside
to see that a minivan had crashed into a tree in her front
yard. Bennett went outside to assist and spoke with the two
men inside the minivan, one of whom seemed dazed; she
identified one of the men as Scott. The driver declined
Bennett's offer to call an ambulance, but she called 911
anyway; the men refused to wait and took off on foot. Bennett
then followed them in her car, maintaining contact with
police via phone.
response to Bennett's call, a police officer located the
two men and spoke with them from inside his patrol vehicle;
the men identified themselves as Young and Scott. When the
officer exited his vehicle, the men fled.
learning that the minivan that crashed into Bennett's
front yard had been reported stolen in connection with the
armed robbery of Hernandez and Cruz-Pantajo, police prepared
a lineup with Scott's photograph. Cruz-Pantajo identified
Scott as one of the persons who robbed him; Hernandez was not
able to identify anyone in the photographic
24, 2014, Scott was arrested and questioned. After initially
denying any involvement in the robbery, Scott later prepared
a written statement indicating that he met Young and some
other men on the day of the robbery, and Young
"announced that he was about to rob some
Hispanics." Scott stated that he declined to
participate, but he rode with some other men to the abandoned
house where Young was supposed to meet the victims. Scott saw
Young brandish a gun and push the men inside the house, and
he saw Young punch one of the victims in the mouth. Scott
stated that he left the scene, met Young shortly thereafter,
and got into the minivan Young was driving. After someone
called and advised Young that there was a tracker on the
minivan, he drove it into a fence, and Scott and Young fled.
jury found Scott guilty of hijacking a motor vehicle (Count
1), aggravated assault of Hernandez (Count 3), and aggravated
assault of Cruz-Pantajo (Count 7).The trial court denied his
subsequent motion for new trial, and this appeal followed.
Scott argues that his conviction for hijacking a motor
vehicle must be reversed because there was a fatal variance
between the allegations in the indictment and the proof at
trial. Count 1 charged that Scott and Young "did, while
in possession of a firearm, obtain a motor vehicle . . . from
the presence of Yoni Hernandez by force and violence, to wit:
he did hit him with a handgun." Scott contends that
there was no evidence that Scott was the person that struck
Hernandez. This enumeration presents no basis for reversal.
Our courts no longer employ an overly technical application
of the fatal variance rule, focusing instead on materiality.
The true inquiry, therefore, is not whether there has been a
variance in proof, but whether there has been such a variance
as to affect the substantial rights of the accused. It is the
underlying reasons for the rule which must be served: 1) the
allegations must definitely inform the accused as to the
charges against him so as to enable him to present his
defense and not to be taken by surprise, and 2) the
allegations must be adequate to protect the accused against
another prosecution for the same offense.
there is evidence from which the jury could conclude that it
was Scott who struck Hernandez with a handgun. Hernandez
testified at trial that a black male struck him from behind
in the mouth. Shortly thereafter, Young and another man
fled in the minivan, while a Hispanic male and the man that
struck Hernandez fled in ...