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Smith v. State

Court of Appeals of Georgia, Fourth Division

August 30, 2017


          DILLARD, C. J., RAY, P. J., and SELF, J.


         Following trial, a jury convicted Dajon Smith on two counts of armed robbery, two counts of false imprisonment, one count of kidnapping, and one count of aggravated assault. Smith appeals his convictions and the denial of his motion for new trial, challenging the sufficiency of the evidence supporting the jury's verdict and arguing that the trial court erred in allowing a police officer to testify as an expert witness. For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [1] the evidence shows that in the early morning hours of July 5, 2013, five high-school-age boys decided to end the day's Fourth of July festivities by going for a late-night swim at another friend's apartment complex pool. On the short walk to the nearby apartment complex, the boys stopped at a convenience store to buy some snacks. And after leaving the store, they noticed that two males appeared to be following them. Nevertheless, the boys continued toward the apartment complex pool, and once there, they set their belongings down on some chairs and began swimming.

         A few minutes later, the two males who had followed the boys hopped the fence surrounding the pool and approached the area where the boys had placed their belongings. Suspicious, the boys got out of the pool, at which point they observed that one of the males was tall, thin, and wearing a dark hat, and the other was shorter, stocky, and had a bandana covering most of his face. The shorter male then asked the boys if they wanted to buy some marijuana, and when they declined, he drew a handgun and pointed it at them. Immediately, one of the boys jumped back in the pool, swam to the other side, climbed the fence, and, recalling that he had seen a police officer at the convenience store, ran there to get help.

         Meanwhile, the shorter male wearing the bandana ordered the remaining boys to get back into the pool. He then demanded that the boys turn over their money, cell phones, and any other valuables, and ordered one of the boys to get out of the pool to assist him and the taller male in retrieving such items from the boys' backpacks. And after taking two cell phones and approximately $20 from the boys, the two assailants hopped back over the fence and fled the area. A few minutes later, two police officers arrived, having been alerted to the robbery by the boy who escaped and ran to the convenience store for assistance. But because of the lack of lighting in the pool area and the shorter male's bandana, the boys could only provide the officers with a description of the assailants' size and clothing.

         The very next day, again in the early morning hours, the same two officers who had responded to the robbery received a call that two suspicious persons appeared to be casing an apartment complex that was within walking distance of the complex where the previous night's robbery occurred. Upon arriving at the complex, the officers came into contact with two males, who ultimately identified themselves as Tremaine Davie and Dajon Smith. Immediately, one of the officers noticed that the males matched the general description provided by boys of the individuals who had robbed them the previous night. And while speaking with Davie and Smith, the officers received another call from dispatch, informing them that the caller who originally reported the suspicious individuals further claimed that they appeared to have thrown a handgun into the woods bordering the complex just as the officers arrived.

         Subsequently, one of the police officers walked Davie away from where the other officer was questioning Smith and asked him if he knew anything about the previous night's robbery. Initially, Davie denied any knowledge of the incident, but after the officer bluffed regarding the existence of surveillance video from the apartment complex, Davie admitted that he and Smith had robbed the boys the previous evening. Specifically, Davie stated that he and Smith followed the boys to the pool and that Smith, wearing a bandana, held the boys at gunpoint while he went through their belongings, taking two cell phones and $20. In light of this information, the officers arrested both Smith and Davie.

         Following the arrests, the officer searched the nearby woods and located a handgun just as the caller who had reported the suspicious persons had speculated. The officers then transported Davie and Smith to the police station, at which point Davie again admitted to the robbery. And while searching Smith at the station, the officers found a bandana, which Smith had attempted to conceal inside the front of his pants. In addition, after securing a warrant, a detective searched the suspects' residences, recovering one of the boy's cell phones at Davie's apartment and the other at Smith's apartment, as well as clothing that matched the description of those worn by the shorter robber.

         Thereafter, the State charged Smith and Davie, via the same indictment, with two counts of armed robbery, two counts of false imprisonment, one count of kidnapping, and one count of aggravated assault. Davie ultimately pleaded guilty, but Smith opted for trial, during which the aforementioned evidence was presented. The State also presented Davie as a witness, but in contrast to his earlier confessions, at Smith's trial, Davie claimed that he committed the robbery alone and denied that Smith was involved. Nevertheless, Davie admitted during his testimony that he had previously implicated Smith in the crime, and the State presented evidence of those initial confessions.

         At the conclusion of the trial, the jury found Smith guilty on all counts. Smith later filed a motion for a new trial, in which he argued the two claims he now raises on appeal. The State filed a response, in which it conceded that the evidence was insufficient to support Smith's kidnapping conviction, but it otherwise contested Smith's claims. Consequently, the trial court vacated Smith's kidnapping conviction but denied the remaining claims in his motion for new trial. This appeal follows.

         1. Smith contends, rather generally, that the evidence was insufficient to support his convictions. We disagree.[2]

         When a criminal conviction is appealed, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.[3] And in evaluating the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility but only determine whether "a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt."[4] Accordingly, the jury's verdict will be upheld so long as "there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case[.]"[5] With these guiding principles in mind, we turn now to Smith's challenge.

         Under OCGA § 16-8-41 (a), "[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . ." And under OCGA § 16-5-41 (a), "[a] person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority." Finally, under former OCGA § 16-5-21 (a) (1), [6] "[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith intent to murder, to rape, or to rob. . . ."

         In this matter, the State charged Smith with two counts of armed robbery, alleging respectively in Counts 1 and 2 that he took a cell phone and U.S. currency from E. E. and a cell phone from J. T. "by use of an offensive weapon . . . a firearm. . . ." The State also charged Smith with two counts of false imprisonment, alleging respectively in Counts 3 and 4 that he "violated the liberty of [M. M.]" and "[ J. T.]" Finally, the State charged Smith with aggravated assault, alleging in Count 6 that he assaulted "[A. J.], with intent to rob, by pointing a gun at said victim. . . ." And as previously noted, the evidence showed that Smith held the four boys at gunpoint, forced them into the pool to restrict their ...

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