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Allen v. State

Court of Appeals of Georgia, First Division

August 21, 2019

ALLEN
v.
THE STATE.

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

          Brown, Judge.

         Paul Allen appeals from his conviction of theft by taking and asserts in his sole enumeration of error that the State presented insufficient evidence to show that he "participated in the theft of the vehicle." For the reasons explained below, we disagree and affirm.

         The record shows that Allen was tried jointly with Joshua Dickerson and Gabriel Toney and that each of them was charged with armed robbery (wallet), aggravated assault (pointing a firearm), theft by taking (motor vehicle), and possession of a firearm during the commission of a felony. The jury found all three men guilty of theft by taking and found them not guilty of the remaining charges. On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and credibility of the evidence.

         (Citations and punctuation omitted.) Hayes v. State, 292 Ga. 506 (739 S.E.2d 313) (2013).

         So viewed, the record shows that the victim became acquainted with someone he knew as "Tony" on a social networking website. On May 1, 2013, the 31-year-old victim decided to travel from DeKalb County, where he lived, to Newton County to meet "Tony" to "hangout" and smoke marijuana. The victim denied that he was meeting "Tony" to conduct a drug deal. He spoke to "Tony" by cell phone around 10:00 p.m. after he had difficulty finding the location because his GPS could not find the address provided by "Tony" (340 Mountainview). After "Tony" directed him to the location, the victim met "Tony" and his cousin, both of whom were standing outside a house. After "Tony" explained that his cousin needed a ride down the street, they both got into the victim's car, with "Tony" in the front passenger seat and the cousin seated behind "Tony" in the rear passenger seat. The victim testified that he was "thrown off that the cousin came along."

         The victim testified that after he drove past a couple of houses, he "was instructed to pull into the driveway" of a house. The cousin did not immediately exit the car, and the victim testified that both "Tony" and the cousin appeared to be "stalling for time" as "Tony" rolled a marijuana cigar, which made him feel uneasy about the situation. When he saw through his rear-view mirror a man "in an orange hoodie walk directly across the yard, behind the . . . trunk of [his] car," the victim asked his passengers if they were expecting someone else. Both passengers said no, and "the next thing [the victim knew, ] the car door [was] snatched open, [and a] gun [was] in [his] face." The victim testified that he was afraid for his life because the gun "looked real" and he could see bullets inside it. Although the man was wearing a blue bandana across his face, the victim noticed that his eye "color was unique for an African-American male" and that his eyes had a distinctive shape. When the gunman snatched open the door, the victim screamed in fear and the gunman said, "Shut the fuck up. Give me your shit." After the victim stated that his wallet was in the glove box, "Tony" grabbed his wallet and "put it in his pocket." The victim testified that after he observed that neither of his passengers looked nervous or scared, he "realized [he] had been set up."

         After "Tony" removed the wallet from the glove box, the victim heard someone say, from what sounded like the back seat of the car, "Get his phone. Get it." At this point, the victim told them that they had his car and wallet and bolted from the car. As he ran away, he heard the gunman state, "Fuck him. Let's go." The victim hid behind a fence in a dark yard and watched his car drive by before calling the police. He did not see "Tony" or his cousin run from the car. He acknowledged during cross-examination that no one told him to run or leave the car.

         While the victim was speaking with a detective in the area where he was robbed, the police stopped a man riding by on a bicycle. The man identified himself as Gabriel Toney and agreed to speak with police. A detective asked him to empty his pockets for safety, and he pulled out a blue cloth rag. Other than the blue rag, Toney had nothing in his pockets that connected him to the robbery. He told the officer that he had been with Joshua Dickerson and Paul Allen that evening. The victim noticed the shape and color of Toney's eyes on the scene, and ultimately identified Toney as the gunman.

         Police investigation quickly revealed that the phone number "Tony" gave to the victim belonged to Allen. After learning this information and that Allen and Dickerson could be found at 235 Mountainview Drive, the police went to that location and received permission from the homeowner to search the residence. A search of the room shared by the two men revealed bullets wrapped inside a blue bandana. None of the items taken from the victim were located in the room shared by Allen and Dickerson. Allen consented to a search of his cell phone which revealed communication between it and the victim's cell phone. The victim identified Allen as the person he knew as "Tony" and Dickerson as the cousin who sat in the back seat.

         The victim testified that because he had the key to the "push start" vehicle in his pocket when he fled, the car would only be able to drive for two miles before shutting down. The police recovered his vehicle on Stoneview Circle in a "subdivision nearby" several hours after it was stolen. Fingerprints taken from the driver's door and rear passenger window did not match Toney, Allen, Dickerson, or the victim.

         Although Toney did not testify at trial, he did speak with police less than five hours after the theft. He acknowledged that he was "chilling" at Dickerson's home with Dickerson and "Paul" from 8:30 p.m. until 10:30 p.m. He denied all involvement in the robbery, yet also told the police that the car might have been left on a street in a nearby neighborhood like Wellington Oaks, Stoneview, or Country Woods.

         Dickerson also spoke with police within five hours of the theft, but did not testify at trial. He initially denied any knowledge of or involvement in the theft, but later admitted getting into the victim's car and being robbed while they were sitting in the car. He stated that he did not see a gun and did not know who robbed them. He explained that he got out of the car "when everything was happening" and ran home. He admitted that he did not call 911 after he fled. He ...


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