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Irving v. State

Court of Appeals of Georgia, Fifth Division

September 9, 2019

IRVING
v.
THE STATE.

          MCFADDEN, C. J., MCMILLIAN, P. J., and SENIOR APPELLATE JUDGE PHIPPS

          McFadden, Chief Judge.

         After a jury trial, Jonathan Quentin Irving was convicted of armed robbery, of multiple counts of aggravated assault, of making terroristic threats, of possession of a firearm during the commission of a felony, and of theft by taking of the firearm used in the robbery. He argues on appeal that the trial court erred in several evidentiary rulings, but we find no reversible error. He argues that the trial court erred in not excluding other evidence for purported discovery violations by the state, but we find no such violations. He argues that the trial court erred in denying his motion to remove a juror for cause after the start of trial, but we find no abuse of discretion. He argues that the trial court erred by applying the wrong standard in denying his motion for new trial, but the trial court's order does not reflect such error. Finally, he argues that the trial court erred in failing to merge his convictions for aggravated assault with his convictions for armed robbery for sentencing purposes, and we agree. So we affirm in part, vacate in part, and remand the case for resentencing.

         1. Facts.

Irving was tried jointly with a co-defendant, Christopher A. Blackwell, and we set forth many of the facts relevant to this appeal in our separate opinion deciding Blackwell's appeal. Blackwell v. State, Ga.App. (S.E.2d) (Case No. A19A0758, decided July 1, 2019). Viewed in the light most favorable to the judgment, see Garza v. State, 347 Ga.App. 335 (1) (819 S.E.2d 497) (2018),
the trial evidence showed that [Irving], along with several other people, planned and executed the robbery of a bank in Carrollton during the afternoon of April 29, 2013. That day, [Irving, Blackwell], Gibran Ezell, and one other man (who was not named at trial) drove in two cars from Atlanta to Carrollton. There, Ezell and the other man got into one car and drove to the bank. Inside the bank, Ezell shot a gun into the ceiling before pointing it at the numerous bank customers and employees who were present. The other man jumped over the teller counter and took approximately $14, 000 in cash. During the robbery, the men demanded money, yelled profanities, and threatened to shoot the people inside the bank, frightening them. After leaving the bank, the men drove to a nearby road, abandoned their car, rejoined [Irving] and [Blackwell], and returned to Atlanta.

Blackwell, Ga.App. at (1).

         The day after the bank robbery, Irving and another man, Chris Snelson, were arrested after a high-speed chase. Irving and Snelson had been traveling in a Dodge Charger, and when that car crashed in the course of the chase they fled on foot and were apprehended several hours later. The gun used in the bank robbery was found in the Dodge Charger. The gun had been stolen earlier that month.

         An investigation of the bank robbery led law enforcement to arrest Ezell, who ultimately gave a statement implicating Irving and, at trial, described Irving's involvement in the robbery. Other trial evidence corroborated Ezell's testimony. As stated above, the gun used in the robbery was found in a car associated with Irving. When Irving and Ezell were being held in the same jail, Irving wrote Ezell letters alluding to the robbery and threatening Ezell not to admit his involvement to law enforcement. And the former girlfriend of Irving's co-defendant, Blackwell, testified to some of the same details as Ezell regarding events that took place in Atlanta on the morning of the bank robbery. She also connected Blackwell to a Dodge Charger.

         2. Evidentiary rulings.

         Irving argues that the trial court erred in several of his evidentiary rulings during trial. We review these rulings for abuse of discretion. Williams v. State, 302 Ga. 474, 478 (807 S.E.2d 350) (2017). And in doing so, we follow our Supreme Court's guidance in Almanza v. State, 304 Ga. 553, 556 (2) (820 S.E.2d 1) (2018), to determine the appropriate body of law to apply. As detailed below, we find no reversible error.

         (a) Admission of evidence of Irving's arrest after the high-speed chase.

         Irving argues that the trial court erred in admitting evidence of his "prior arrest," by which he apparently means evidence of his arrest after the high-speed chase that occurred the day after the bank robbery. He primarily asserts that this evidence was improper character evidence in violation of OCGA § 24-4-404 (b). We disagree.

         OCGA § 24-4-404 (b) provides that "[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show conformity therewith." But these limitations "do not apply to 'intrinsic' evidence. Evidence is intrinsic when it is (1) an uncharged offense arising from the same transaction or series of transactions as the charged offense; (2) necessary to complete the story of the crime; or (3) inextricably intertwined with the evidence regarding the charged offense." Clark v. State, Ga., (4) (829 S.E.2d 306) (2019) (citations and punctuation omitted). Stated another way, evidence is intrinsic if "it forms an integral and natural part of the witness's accounts of the circumstances ...


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