MCFADDEN, P. J., MCMILLIAN and GOSS, JJ.
jury trial, Charles Vincent Rice was convicted of one count
of armed robbery (OCGA § 16-8-41) and two counts of
robbery by intimidation, a lesser included offense of robbery
(OCGA § 16-8-41). He appeals from the denial of his
motion for new trial, arguing that the evidence was
insufficient to support his conviction of armed robbery. He
also argues, in related enumerations, that the trial court
erred by allowing a victim of one of the robberies identify
him in videos and still photographs from the other two
robberies, and that his trial counsel rendered ineffective
assistance of counsel. For the following reasons, we affirm.
in the light most favorable to the jury's verdict,
record shows that Rice robbed three taxi drivers over the
course of a month. On February 6, 2015, John Hennessy, a taxi
driver with the Yellow Taxi Company, picked up Rice at a
grocery store in the early morning hours. Rice got into the
front seat of the cab and asked to be driven to Bolton
Street. Once they arrived, Rice had something sticking out of
his jacket pointing at Hennessy. Rice then said "Do you
know what this is?" and "well, give me your
money." Hennessy testified that he looked down and saw
something, he did not know what, sticking out of the jacket.
He thought it was a gun because Rice told him that it was.
Hennessy gave him the money in his pocket, about to fifty to
sixty dollars, and his phone. Rice demanded Hennessey's
wallet and did not believe him when he said he did not have
one. Rice then demanded that Hennessy continue to drive him
for about ten minutes while he attempted to make him give up
his wallet. Hennessy eventually pulled over to let Rice out.
Rice pulled the camera out of the taxi and ran out of the
car. Hennessy identified Rice in a photo line up and at
trial. Hennessy also identified Rice as the person he had
briefly seen at a Krystal's fast food restaurant several
days after the robbery. Hennessy testified that he pulled
into the parking lot and Rice walked up to get in the cab.
Hennessy asked Rice if he remembered robbing him, and Rice
February 12, 2015, Henry Wands, a taxi driver with the Yellow
Taxi Company, picked up Rice as a passenger. Wands had a
video camera located in his cab on the passenger side of the
top of the windshield in the front. The camera also picked up
audio. This video was played for the jury. Rice got into the
backseat of the car and asked Wands where the camera was in
the taxicab. As Wands was stopping the cab, Rice said,
"I got a surprise from you[, ]" as he reached from
the backseat to shove something into Wands' back and
indicated that he had a gun under his shirt. Rice stole
Wands' money, phone, watch and jewelry. Rice then
demanded the in-car surveillance camera, but Wands could not
get it down so he simply unplugged it. Wands testified that
he picked two photographs from a photographic lineup as
looking familiar and that one of them was a photo of Rice.
February 17, 2015, at around 1:30 a. m., Kendall Minor, a
taxi driver with the Yellow Taxi Company, picked up Rice as a
passenger. Minor had a video camera running in his cab at the
time he picked Rice up. The video was shown to the jury. On
the video, Rice can be seen reaching from the backseat to
stick his hand in Minor's back. Rice orders Minor to
continue driving and does not allow him to turn around to
look at Rice. Rice can be heard on the video telling Minor
that "this is a stick up" and that he would
"blow [his] . . . head off." Rice took all of
Minor's money and made Minor get out of the cab with him.
Rice threw the keys to the cab down on the ground and made
Minor walk down the road with him for about five minutes
before allowing Minor to return to the taxi. Minor testified
that when Rice robbed him, "he had his hand in his shirt
but that was supposed to be the gun. . . I mean[, ] I'm
going to tell you it looked like just his finger. He might
have tricked me, but I didn't want to take any
chances." Minor also testified that he likely would not
have handed over his cash if he did not believe that it was
possible Rice had a gun.
argues that the evidence was insufficient to support his
conviction for armed robbery against Minor. We disagree.
three of the indictment charged Rice with armed robbery of
Minor by "use of an article or device having the
appearance of an offensive weapon." OCGA § 16-8-41
(a) states that "[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 immediate presence of
another by use of an offensive weapon, or any replica,
article, or device having the appearance of such a
argues that, in light of Minor's testimony that he did
not see a gun and that he thought Rice was pretending that
his finger was a gun, the State failed to prove that Minor
believed that Rice possessed a weapon at the time he demanded
the money from the taxi driver. However,
"[c]ircumstantial evidence may establish the presence of
a weapon during a robbery even though the weapon is
unseen." (Citation omitted.) Maddox v. State,
238 Ga.App. 598, 598 (1) (521 S.E.2d 581) (1999). "Some
physical manifestation is required or some evidence from
which the presence of a weapon may be inferred, but OCGA
§ 16-8-41 (a) does not require proof of an actual
offensive weapon." (Citations omitted.) McCluskey v.
State, 211 Ga.App. 205, 207 (2) (438 S.E.2d 679) (1993).
"[T]he test is whether the defendant's acts created
a reasonable apprehension on the part of the victim that an
offensive weapon was being used, regardless of whether the
victim actually saw the weapon." (Punctuation and
footnote omitted.) Faulkner v. State, 260 Ga.App.
794, 795 (581 S.E.2d 365) (2003). Georgia courts have held
that "threatening to shoot a victim while keeping a hand
concealed shows the weapon element of armed robbery."
(Citation omitted.) Id. at 795, n. 6. See also
McCluskey, 211 Ga.App. at 207 (2); Johnson v.
State, 195 Ga.App. 56, 57 (1) (a) (392 S.E.2d 280)
the video from inside the taxicab shows that Rice reached
from the backseat to shove an object into Minor's back
while he demanded that Minor hand over his money and drive
him where he wanted to go or else he would shoot him.
Although Minor's testimony at trial was that he believed
that Rice may have threatened him with his finger, he also
testified that he complied with Rice's orders to hand
over his money because he was not positive that Rice did not
have a gun. Further, the video shows that because Minor was
driving, he was unable to see what Rice was holding. The
video was published for the jury, and they could see and hear
Minor and judge for themselves how scared he was. "[I]t
is the role of the jury to resolve conflicts in the evidence
and to determine the credibility of witnesses, and the
resolution of such conflicts adversely to the defendant does
not render the evidence insufficient." (Citation and
punctuation omitted.) Richmond v. State, 300 Ga.
892, 894 (799 S.E.2d 220) (2017). The evidence presented at
trial was sufficient to authorize a rational trier of fact to
find beyond a reasonable doubt that Rice was guilty of armed
robbery as charged in Count Three. Jackson v.
Virginia, 443 U.S. at 319 (III) (A).
related enumerations of error, Rice argues that the trial
court erred by allowing, over objection, Hennessy to compare
the robber in his case to the man depicted in videos and
still photographs of the two other robberies. We find no
trial court allowed the State, over Rice's objection, to
ask Hennessy to identify the robber in the videos showing the
robberies of Minor and Wand. The State argued that Hennessy
would be more likely to identify Rice correctly because
Rice's appearance had changed from the time the videos
were made to the time of trial. Specifically, Rice had grown
a beard before trial. Further, Hennessey had testified that
he was familiar with Rice's voice. In overruling the
objection, the trial court noted that although "it is
generally improper to allow a witness to testify as to an
identity when that opinion evidence tends only to establish a
fact that the average jurors could decide . . . I do believe
. . . from having seen the case thus far that there's an
added dimension in this case and so, I think that your
arguments go more to the weight of the testimony than to its
admissibility." In denying Rice's subsequent motion
for new trial, the trial court noted that it was convinced by
Hennessey's testimony regarding his recognition of
Rice's voice. The State then played the videos from the
in-vehicle cameras in the taxis driven by Wands and Minor.
Hennessey testified that he recognized Rice's voice in
those videos because "I deal with people in the back of
the cab that I don't see every night. I can remember
someone's voice, and I remember that gentleman's
new Evidence Code allows "lay witness testimony in the
form of opinions or inferences that are rationally based on
the witnesses's perception, helpful to a clear
understanding of the determination of a fact in issue, and
not based on scientific, technical, or other specialized
knowledge." Glenn v. State, 302 Ga. 276,
280-281 (II) (806 S.E.2d 564) (2017), citing OCGA §
24-7-701. In Glenn, supra, our Supreme Court
concluded that a lay witness who was familiar with the
defendant could give testimony identifying the defendant as
one of the people in a surveillance video of the murder. In
doing so, the Georgia Supreme Court adopted the test used by
the Eleventh Circuit in United States v. Pierce, 136
F.3d 770, 774 (11th Cir. 1998) to decide whether there is
"some basis for concluding that [a] witness is more
likely to correctly identify" a defendant as "the
individual depicted in the photograph," and thus to
allow a lay witness identification. The factors cited in
allowing such testimony in Glenn included poor
quality of the surveillance video, the witness's prior
familiarity with defendant, and the fact that defendant's
appearance had changed since the time of the crime.
Glenn, 302 Ga. at 281 (II). In Harper v.
State, 213 Ga.App. 444 (445 S.E.2d 303) (1994), this
Court affirmed a trial court ruling allowing an investigating
office to opine that the defendant, whose weight and hair
length had changed since the date of the incident, was the
person depicted in the videotape of a convenience store
robbery because the officer had observed the defendant at the
time of his arrest. Id. at 444, 448 (5) (applying
the former Evidence Code).
Rice's appearance had changed since the time of trial
because he grew a beard, and Hennessy testified that he had
the ability to recognize and memorize voices as a result of
his job as a taxi driver and that he recognized the man in
the videos as the man who robbed him and tried to get in his
car at the Krystal restaurant. ...