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Whitmire v. State

Court of Appeals of Georgia, First Division

October 23, 2017

WHITMIRE
v.
THE STATE.

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

          Barnes, Presiding Judge.

         In connection with a bank holdup, Raymond Charles Whitmire was convicted of armed robbery. He thereafter sought, but was denied, a new trial. In this appeal, Whitmire challenges, inter alia, the sufficiency of the evidence on legal and general grounds. We conclude that the evidence was legally sufficient. But because it appears that the trial judge failed to exercise discretion to sit as a "thirteenth juror" with respect to the general grounds raised, we vacate the denial of Williams's motion for new trial and remand the case for reconsideration thereof. We thus do not reach the remainder of Whitmire's enumerated claims of errors.

         1. Where an appellant challenges the legal 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." Jackson v. Virginia, 443 U.S. 307, 317 (III) (B) (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979); see White v. State, 293 Ga. 523, 523 (1) (753 S.E.2d 115) (2013).

         So viewed, the evidence adduced at the jury trial showed the following. On April 26, 2014, at about 11:00 a.m., a man holding a bag walked into a bank and stood in line for a bank teller. When it was his turn to be assisted, the man approached the teller's window, placed the bag on the counter, then handed the teller a note that demanded money and stated that he had a grenade. After reading the note, the teller saw the imprint of a "small bulge" on the side of the bag, discerned that a weapon was inside, and realized that she was being robbed. Fearful of the man, the teller gave him cash from the teller drawer. The man put the cash in the bag, then exited the bank, carrying with him the bag of cash.

         Frantic, the teller began yelling that she had just been robbed. She asked a nearby customer sales representative to secure the building, then ran to a window and observed the robber leaving the scene driving a white, "older model" Nissan Pathfinder with a dealer tag.

         A police investigation ensued, and Whitmire became a suspect. About a month after the incident, a detective showed to the teller and the customer sales representative a photographic array of six men, one of whom was Whitmire. The teller testified that, during the incident, she had taken note of the man's physical characteristics. The customer sales representative testified that, given her employee training to notice individuals entering or exiting the bank, she had greeted the man - taking note of his physical attributes. When shown the array, both bank employees identified the photograph of Whitmire as the man who had committed the crime.

         The State also presented the testimony of a bank customer who was inside the bank during the robbery. During the police investigation, he also pointed to Whitmire's photograph in an array as the man who committed the robbery. At trial, the customer maintained that he was "one hundred percent" certain that Whitmire was the man who had perpetrated the crime. The customer acknowledged on cross-examination, however, that he was "always behind" the man. And when next asked whether the man had "ever turn[ed] and look[ed] at you that you recall, " the customer replied, "I don't recall."

         Whitmire's two step-daughters were also questioned during the police investigation. One of the step-daughters told police that she was 95 percent certain that the man depicted in a still photograph from the bank's surveillance video was Whitmire. At trial, she recalled that Whitmire had "driven or owned" a white, "90's model" Nissan Pathfinder; she also testified that she had seen a "dummy grenade" inside Whitmire's shed. Whitmore's other step-daughter told police during the investigation that she was 80 to 85 percent certain that the man depicted in the same still photograph was Whitmire. And at trial, that stepdaughter acknowledged further that the man in the still photograph was wearing a jacket and hat that looked like ones belonging to Whitmire. Notwithstanding, both of Whitmire's step-daughters went on to testify that they had recently viewed the bank's security video of the criminal incident and that the perpetrator captured therein did not appear to be Whitmire.

         A used-car dealer recounted at trial that in February 2014 (about two months before the bank holdup), he sold Whitmire a white Nissan Pathfinder for approximately $2, 500, then placed a dealer tag on the vehicle. On April 28, 2014, the dealer initiated repossession proceedings on the vehicle due to Whitmire's failure to maintain the payment schedule.

         Police spotted Whitmire driving a white, 1997-model Nissan Pathfinder and arrested him. A subsequent police search of his home yielded, inter alia, two explosive devices, but no hand grenade.

         Pursuant to 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, or any replica, article, or device having the appearance of such weapon. The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.

         Whitmore was charged with committing armed robbery by taking cash, the property of a bank, from the immediate presence of a bank ...


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