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Belcher v. State

Court of Appeals of Georgia, Fourth Division

February 26, 2018


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

          Dillard, Chief Judge.

         Following trial, a jury convicted Norris Kang Belcher of armed robbery, kidnapping with bodily injury, hijacking a motor vehicle, possession of a firearm during the commission of a felony, financial-transaction-card fraud, battery, and possession of a firearm by a convicted felon during a crime. Belcher appeals from these convictions, arguing that (1) the evidence was insufficient to sustain his convictions, and (2) the trial court erred by permitting certain testimony. For the reasons set forth infra, we affirm.

          Viewed in the light most favorable to the jury's guilty verdict, [1] the record shows that on November 14, 2014, Belcher, while at his mother's house, was overheard saying that he wanted to rob someone at gunpoint. And later that night, Belcher-along with co-defendants Shaquille Smith and Derrius Partee-went to a house party in Walton County, Georgia, where they encountered the victim playing a card game.

         At some point during the party, the victim left the card game to retrieve some money from his vehicle, and while doing so, he saw the three defendants outside. The victim then reentered the house and continued playing cards before suddenly hearing the alarm go off on his vehicle. When he went to turn off the alarm, the victim again saw the three defendants, who asked him whether it was his vehicle. After disengaging the alarm and returning to the card game, the victim, who suspected that something was amiss, informed a friend that he would be leaving shortly.[2]

          When the victim returned to his car a final time in order to leave, he had around $200 to $300 that he won playing cards. And once again, he was approached by the defendants. They asked the victim for a ride, but he refused to give them one. At this point, the defendants forced the victim into the backseat of his vehicle at gunpoint. Belcher got into the backseat with the victim, while Smith sat in the front-passenger seat and Partee drove. During the drive, Belcher pointed the gun at the victim's side and threatened to shoot him in the same place that he had been shot-telling the victim that he would "feel the same thing that [Belcher] felt."

         The victim was then taken to another location under threats that he would be shot and with warnings not to "try anything." While there, the defendants began to rummage through his car. The victim-whose phone had been destroyed by the defendants prior to being driven away from the house party-was severely beaten by the defendants, who took a variety of items from him (including his child's social-security card and birth certificate). He was then forced back into his vehicle and driven by the defendants to a bank. There, Partee used the victim's ATM card to withdraw money from the ATM, and the machine took photographs during the withdrawal.

          After a visit to the bank, the defendants drove the victim to a deserted location where a struggle ensued inside of the vehicle. The victim managed to take possession of the firearm, but he was unable to fire it at his attackers. The scuffle then spilled out of the vehicle, and the victim was once again severely beaten by the defendants. The victim was forced back into the car again and driven back to the first location. The defendants then wiped down the vehicle and placed the victim into the trunk at gunpoint. He remained in the trunk while the defendants drove to a number of unidentified locations. When the victim was finally removed from the trunk, he was again beaten before being released with his car. The victim's injuries were so severe that he threw up blood and was transported to a hospital via ambulance after successfully making it home to his mother's house. He remained in the hospital overnight.

         The victim did not know Belcher and Smith before the night in question, but he knew Partee and subsequently recognized Belcher in a Facebook photograph. He later testified that he "knew for a fact" that the person in the picture was the individual who sat next to him in the backseat of the vehicle. The victim showed the picture to law enforcement while he was still in the hospital, thus identifying Belcher as one of the perpetrators not long after the attack. Belcher was thereafter arrested, and law enforcement noticed his scar from a gunshot wound that matched the victim's description. After his arrest, Belcher contacted an acquaintance and advised her that he had been arrested and told law enforcement that he was with her on the night of the incident, which she later testified was not true.

         Following a joint trial of the three defendants, Belcher was convicted of armed robbery, kidnapping with bodily injury, hijacking a motor vehicle, possession of a firearm during the commission of a felony, financial-transaction-card fraud, battery, and possession of a firearm by a convicted felon during a crime. He now appeals from these convictions, following the denial of his motion for new trial.[3]

         When a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence.[4] And the relevant question is whether, after reviewing 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."[5]We do not weigh the evidence or determine witness credibility, and 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.[6] With these guiding principles in mind, we turn now to Belcher's enumerations of error.

         1. Belcher argues that the evidence was insufficient to sustain his convictions. We disagree.

         Belcher's only argument as to the sufficiency of the evidence is that the "sole proof" of his involvement came from "the identification of the witness, " i.e., the victim's identification of Belcher as the perpetrator who sat with him in the backseat of the car and threatened to shoot him in his side. Belcher argues that eyewitness identifications "have been cited as the source of 70% of the convictions overturned for DNA evidence, " and he provides a web address for the Innocence Project as his only supporting citation. He continues to generally attack the victim's identification of Belcher as the perpetrator, again providing no citation to binding legal authority.[7]But it is well established that the "testimony of a single witness is generally sufficient to establish a fact."[8] And Belcher essentially asks this Court to second-guess the victim's credibility. This, we will not do. As previously noted, this Court is not at liberty to weigh the evidence or determine witness credibility.[9] Instead, we will uphold a jury's verdict so long as some competent evidence, even though contradicted, supports each fact necessary to prove the State's case.[10]

          Furthermore, in addition to the victim's testimony, the State also presented circumstantial evidence of guilt. Indeed, as discussed in detail supra, Belcher was overheard to say on the night in question that he wanted to commit a robbery; Belcher attended the party with Smith and Partee; witnesses testified to Partee's cell phone containing text messages that referenced a plan to commit a robbery at the party; the ATM machine documented the relevant withdrawal of stolen money, including photographing the individual withdrawing the funds (who the victim testified was Partee); Belcher was observed by law enforcement as having gunshot scars on the area of the body that was consistent with the victim's story of the back-seat perpetrator's threats; and Belcher attempted to persuade an acquaintance to provide him with a false alibi.[11]

          Having considered the facts of this case, we conclude that the direct and circumstantial evidence was sufficient to sustain Belcher's convictions for armed robbery, [12] kidnapping with bodily injury, [13] hijacking a motor vehicle, [14] possession of a firearm during the commission of a felony, [15] financial-transaction-card fraud, [16]battery, [17] and possession of a firearm by a convicted felon during a crime.[18]

         2. Next, Belcher contends that the trial court committed reversible error by permitting the State to elicit testimony that co-defendant Smith's father attempted to influence the victim by bribing him into changing his account of what took place. Although we agree that the trial court erred in admitting the evidence, we disagree that the error requires reversal of Belcher's convictions.[19]

         The record reflects that after the victim was cross-examined and questioned at length about statements he made to law enforcement that were inconsistent with his trial testimony, the State sought to rehabilitate the victim by questioning him about Smith's father and the fact that he had been offered $5, 000 by the father if he said that Smith was not involved in the robbery and that Belcher was the mastermind. And before hearing this testimony, the jury was instructed that it was being introduced for the limited purpose of the jury's consideration of the witness's credibility and believability.

         In favor of admitting the testimony, the State argued that because cross-examination had suggested that the victim was "just making this up and essentially this is just some fight between him and [defendant] Partee and a completely made-up story, that opens the door to then bringing in why this is not a made-up story, essentially that he's turned down $5, 000 to still come in here and tell the truth." The State also argued that

[i]f it was the opposite, it would be easily admissible[.] If a victim in a crime files a lawsuit against somebody, it shows they have a financial motive against that defendant. And defense attorneys are always going to be able to ask a victim, you filed this lawsuit because you're trying to get money. Well, when the opposite a true [sic] where the victim has turned down money, I think that should come in just like the opposite[.] I think for that reason, the [S]tate should be able to ask [the victim] about [Smith's father] approaching him and offering him money to change his testimony[.]

         The State continued that the victim's "credibility has been so attacked over and over and over again that essentially this is something that shows that he does not have some random motive against . . . any of these people other than just the truth." And again, the State argued that "[i]f someone has a . . . financial motive to lie, well, this is the inverse of that, is that he turned down a financial motive. So that goes back to his credibility in this case[.]"

          There are many acceptable methods of attacking the credibility of a witness including, but not limited to, (1) attacking the general character for truthfulness of the witness; (2) showing that, before trial, the witness made statements that are inconsistent with his or her trial testimony; (3) showing bias of the witness; (4) showing that the witness's capacity to perceive, recall, or relate the relevant event is impaired; and (5) contradicting the substance of the testimony by the witness.[20] Some, but not all, of these methods of impeachment are explicitly included in the rules of evidence.[21] But our rules of evidence address the rehabilitation[22] aspect of only two of these methods-the witness's character for truthfulness[23] and prior statements made by the witness.[24] Accordingly, because "admissibility of evidence regarding a witness's [alleged] bias, diminished capacity, and contradictions in his testimony is not specifically addressed by the Rules, . . . [the] admissibility is limited only by the relevance standard of [OCGA § 24-4-402]."[25]

          On appeal, Belcher takes issue with the court's admission of the above-referenced testimony over his objection, contending that it was an abuse of discretion because (1) there was no evidence linking the father's efforts to influence the victim's testimony to any of the defendants, [26] (2) the evidence could not be used to rehabilitate the victim, and (3) the error was not harmless because a juror testified to being in fear for her life and was ultimately dismissed from service. We will address each of these contentions in turn.

         (a) First, Belcher's arguments regarding the State's failure to link the testimony regarding Smith's father's attempt to influence the victim to any defendant is a nonstarter because the State did not introduce the testimony as circumstantial evidence of guilt.[27] Instead, the State argued that it was introducing the testimony to rehabilitate the victim's credibility, and the court admitted it for that purpose, giving the jury two limiting instructions to that effect. Accordingly, the authority Belcher relies upon is inapposite to what actually occurred in this case because he cites decisions concerning the use of such evidence as a means of establishing the guilt of the accused, not as evidence to rehabilitate a witness's credibility.[28]

         Still, we must consider whether the State properly introduced the evidence as a means of rehabilitating the victim's credibility under Georgia's rules of evidence.

         (b) In a somewhat convoluted and roundabout way, Belcher asserts that the trial court erred in admitting the evidence at issue to rehabilitate the victim's credibility because no rule of evidence would permit the admission of the type of evidence the State used. Specifically, he argues the defendants could not have "opened the door" to the inadmissible testimony and that the evidence was not admissible under OCGA § 24-6-608 because the victim's character for truthfulness had not been attacked, leaving the State with no reason to introduce the testimony.

         The State, in an equally convoluted argument, does not specifically rely upon OCGA § 24-6-608. Instead, citing to cases that were decided under our old evidence code, [29] the State responds that the complained-of testimony was generally relevant to the victim's credibility under OCGA § 24-4-401, [30] and that the cross-examination of the victim was "brutal." But the State does not contend-and the record does not reflect-that cross-examination of the victim included any manner of impeachment that would permit introduction of the complained-of evidence as being generally relevant.[31] Thus, the general rule of relevance upon which the State specifically relies is an insufficient basis to support admission of the testimony for purposes of rehabilitation. And, as Belcher notes, there is no rule that generally "opens the door" to otherwise inadmissible evidence.[32]

         Notwithstanding specifically relying upon relevancy to support admission of the complained-of evidence to rehabilitate the victim, the State then argues that defense counsel not only pointed to inconsistencies between the victim's testimony and his prior statements to law enforcement but also "alleged recent fabrication of testimony and improper influence."[33] But the State does not discuss the rules of evidence that address the types of rehabilitation evidence that may be introduced in the wake of such impeachment.[34]

         Likewise, the trial court's order denying Belcher's motion for new trial does not specify which provision(s) of the new Evidence Code supported admission of the complained-of testimony, only concluding that the evidence was admissible as rehabilitative evidence "even though there was no direct evidence linking the defendant with this effort by the father of a co-defendant." In support, the trial court cites to Coleman v. State[35] and Lindsay v. State.[36] But these cases were not only decided under our old Evidence Code, [37] they are also factually inapposite.

         Coleman concerned testimony "about an anonymous threat [the victim] received on his answering machine the morning he was scheduled to testify, "[38] and the Supreme Court held that the testimony was appropriately admitted "to explain the witness's evasive and extremely reluctant conduct on the witness stand"[39] and "to explain why the witness was being difficult, which was a relevant area of inquiry at trial."[40] This was not the purpose of the complained-of testimony here.

         In Lindsay, a witness testified to receiving threatening phone calls that attempted to dissuade her from testifying.[41] The Supreme Court in Lindsay relied upon Kell, discussed in Division 2 (a) supra, to hold that

[e]vidence of a defendant's attempt to influence or intimidate a witness is circumstantial evidence of guilt, even in the situation in which the defendant does not personally make the attempt, that is, action by a third party to influence a witness not to testify or to testify falsely is relevant and admissible into evidence in a criminal prosecution on the issue of the defendant's guilt when the accused is shown to have authorized the attempt.[42]

         And the Supreme Court further noted that "there was no objection at trial to admission of evidence of the calls on the basis that they had not been sufficiently connected to [the defendant], nor is any error in that regard enumerated in this appeal."[43] Again, this situation is clearly distinguishable from the facts and arguments presented in this case.

         Thus, none of the cases the trial court relied upon to deny Belcher's motion for new trial on this ground support the court's conclusion that admission of the complained-of testimony was appropriate. And because we have rejected the State's assertion that the evidence was generally relevant, we must now assess the potentially applicable rules of evidence to ...

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