Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wilson v. State

Court of Appeals of Georgia, Third Division

January 22, 2018

WILSON
v.
THE STATE.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          ANDREWS, JUDGE.

         Following a jury trial, Leroy Wilson was convicted of criminal attempt to commit armed robbery, aggravated assault, entering an auto to commit theft, and first degree criminal damage to property. Wilson appeals, challenging the sufficiency of the evidence. He also argues that he received ineffective assistance of counsel at trial and that the trial court erred in failing to merge two of his convictions. For reasons that follow, we affirm in part, vacate in part, and remand for re-sentencing.

         1. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and a defendant no longer enjoys a presumption of innocence. See Buruca v. State, 278 Ga.App. 650 (629 S.E.2d 438) (2006). We do not weigh the evidence or resolve credibility issues, but merely determine whether the jury was authorized to find the defendant guilty beyond a reasonable doubt. See id. at 650-651. "As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state's case, we must uphold the jury's verdict." Id. at 651.

         So viewed, the evidence shows that the victim worked at a restaurant located on Russell Parkway in Warner Robins. On May 29, 2015, she arrived at work around 9:30 a.m., parked in front of the restaurant, and began taking groceries inside. As she returned to her car, she encountered a masked man dressed in dark clothing in the restaurant doorway. The victim tried to run, but fell down, and the man picked her up, placing a gun to her head. The victim managed to get away after a struggle and ran for help. She heard gunshots as she fled.

         An employee and a customer at a nearby pawn shop saw the gunman assaulting the victim. The employee called the police from the back of the shop, then heard two gunshots. The police responded, and a patrolman began driving around the area, looking for the gunman. As the patrolman entered a neighborhood approximately one block from the restaurant, he saw Wilson standing in a yard, wearing dark blue jeans rolled up to his ankles, black shoes, and a light-colored t-shirt. When Wilson saw the patrol car, he ran, carrying a black bag.

         The patrolman apprehended Wilson after a short chase and recovered the bag, which contained medical supplies, as well as a loaded gun with one spent round in the magazine. The victim identified the bag as hers, and she testified that she kept the bag, in which she stored medical supplies needed for her second job, in the back seat of her car. The evidence further showed that ammunition in the gun recovered from the bag bore the same identifying marks as a spent shell casing found outside the restaurant.

         Around the time of the incident, an individual residing near the crime scene found a long-sleeved black shirt and a pair of black gloves in his yard. A hat worn by the gunman was also located behind the restaurant. Video surveillance cameras in the area recorded the assault, revealing that a masked individual wearing dark clothing, a black hat, and gloves confronted the victim with a gun, struggled with her briefly, and removed a black bag from the victim's car once she fled the scene. As he left the area, the gunman stopped briefly to fire the gun in the direction of Russell Parkway, striking the car with a bullet.

         Based on the evidence presented, the jury found Wilson guilty of criminal attempt to commit armed robbery, aggravated assault, entering an automobile to commit theft, and first degree criminal damage to property. Wilson challenges these findings on appeal, asserting that the evidence failed to identify him as the assailant and did not establish that the alleged interference with property endangered human life. We disagree.

         (a) With respect to identity, Wilson notes that neither the victim nor any other witness identified him as the assailant. But "circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt." Minor v. State, 328 Ga.App. 128, 130-131 (1) (761 S.E.2d 538) (2014) (citation and punctuation omitted). And significant circumstantial evidence tied Wilson to the offenses here.

         Specifically, Wilson was observed shortly after the crimes in a nearby neighborhood carrying a bag taken from the victim's car. Although Wilson was not wearing the hat, gloves, or shirt worn by the assailant, his pants were cuffed in the same way as the culprit, and police found the other clothing discarded close to the restaurant. Wilson attempted to elude police, but was captured and found in possession of a gun linked to the crime scene. Such evidence authorized the jury to conclude beyond a reasonable doubt that Wilson was the assailant. See Minor, supra at 131 ("[C]ircumstantial evidence of a defendant's identity need not exclude every conceivable inference or hypothesis - only those that are reasonable. To set aside the conviction it is not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by somebody else.") (citation and punctuation omitted); Roberts v. State, 322 Ga.App. 659, 662-663 (2) (a) (745 S.E.2d 850) (2013) (although victim could not positively identify defendant as assailant, jury was authorized to find him guilty based on circumstantial evidence, including that he fled from police near scene and had property belonging to victim, as well as shotgun used during robbery, in his car).

         (b) Wilson argues that his conviction for first degree criminal damage to property cannot stand because the State offered no evidence that the interference with property endangered human life. A person commits criminal damage to property in the first degree when he "[k]nowingly and without authority interferes with any property in a manner so as to endanger human life." OCGA § 16-7-22 (a) (1). The phrase "in a manner so as to endanger human life" means "reckless endangerment rather than actual endangerment." Carthern v. State, 272 Ga. 378, 381 (529 S.E.2d 617) (2000). An "actual risk of danger must exist and the defendant must at least act recklessly." Id. (punctuation omitted). As explained by our Supreme Court, "[t]his interpretation is consistent with the purpose of the statute in seeking to protect human life and recognizes the heightened punishment for criminal damage to property when human safety is threatened." Id.

         Construed favorably to the verdict, the evidence shows that Wilson shot a gun in the direction of the victim's vehicle and Russell Parkway, a five-lane road. Although Wilson argues that the vehicle was unoccupied at the time, the video surveillance recording shows a steady flow of traffic on Russell Parkway just before the shooting. Under these circumstances, the jury was authorized to find that Wilson recklessly endangered the lives of people on Russell Parkway, in violation of OCGA § 16-7-22 (a) (1).

         2. Wilson contends that his trial counsel provided ineffective assistance by not attacking the sufficiency of the indictment. To prevail on this claim, Wilson "must prove both that . . . trial counsel's performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance." Atkinson v. State, 301 Ga. 518, 524-525 (6) (801 S.E.2d 833) (2017) ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.