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Gay v. State

Court of Appeals of Georgia, Second Division

September 12, 2019

GAY
v.
THE STATE.

          MILLER, P. J., RICKMAN and REESE, JJ.

          MILLER, PRESIDING JUDGE.

         Following a jury trial, Tyre Gay was convicted of three counts of armed robbery, three counts of possession of a firearm during commission of a felony, one count of hijacking a motor vehicle, one count of kidnapping, and one count of aggravated assault. Gay was sentenced to life imprisonment, with an additional 5-year prison sentence. Gay appeals from the denial of his motion for new trial, arguing that (1) the evidence was insufficient to support his convictions for the offenses regarding two of the victims in this case; (2) his trial counsel rendered ineffective assistance; and (3) the trial court committed plain error by failing to charge the jury on accomplice testimony. For the reasons that follow, we affirm the trial court's order denying Gay's motion for new trial.

         Viewed in the light most favorable to the verdicts, [1] the evidence shows that on June 30, 2011, James Thomas, a taxicab driver, went to the Civic Center MARTA station in Atlanta to pick up two passengers. After arriving at the train station, Thomas used a phone number provided by his dispatch company to call the passengers and inform them that he was waiting to take them to their destination. After getting into Thomas' vehicle, the two passengers instructed Thomas to drive to the Bouldercrest apartment complex in East Atlanta. When they reached the destination, Thomas turned to inform the passengers of the cost of the fare but the passenger seated behind Thomas began to choke him and demanded at gunpoint that he "give up money." The passenger took money and a cellular phone from Thomas and ordered him into the back seat of the vehicle. Thomas began to struggle for the firearm with the gunman while the second passenger in the vehicle encouraged the first passenger to shoot Thomas. During the struggle, Thomas escaped from his vehicle and fled the scene. Thomas described the first suspect to law enforcement as a black male between the ages of 20 and 25, who was approximately five feet ten inches tall, weighed 160 pounds, who had dark skin and short hair, and was wearing a grey t-shirt and jeans. He described the second suspect as a black male between the ages of 20 and 25, who was approximately five feet ten inches tall, weighed 170 pounds, had dark skin and a low haircut, and was wearing a white t-shirt and tan shorts. Thomas described the firearm as a silver-plated handgun. From a photo lineup, Thomas identified Ladarrius Robinson, the co-defendant, as one of the men involved in the robbery.

         The next day, Taha Aitsalah, another taxicab driver, picked up three male passengers from downtown Atlanta. Aitsalah's car was equipped with a camera, which took photographs of the three male passengers. After arriving at an apartment complex in Decatur, the passenger seated behind Aitsalah grabbed Aitsalah by the head and removed him from the vehicle at gunpoint. One of the passengers broke the camera in the vehicle and took $40 from Aitsalah's pocket. Aitsalah was placed in the back of the vehicle while one of the passengers drove to a nearby ATM machine, asked Aitsalah for his PIN, and made two withdrawals of $500 each from Aitsalah's account. The passengers then drove to another apartment complex, let Aitsalah out of the vehicle, and drove away in Aitsalah's car. Aitsalah identified Gay from a photo line-up and during trial as the person who robbed him and threatened him with the firearm.

         The day after Aitsalah's robbery, Stephen Obidoh, another taxicab driver, received a call from his taxicab company to pick up two male passengers from a lounge in downtown Atlanta. The passengers instructed Obidoh to take them to the Bouldercrest apartment complex, and upon their arrival, they paid Obidoh $40. While exiting the taxicab, one of the passengers told the other passenger to "do it," at which point the other passenger pointed a pistol at Obidoh's head. Obidoh grabbed the pistol, and a struggle ensued. During the struggle over the pistol, Obidoh was hit on the head with the pistol. Obidoh subsequently fled the vehicle and called the police. During the incident, the passengers took back the $40 paid to Obidoh and also took an additional $125 from Obidoh's pocket. Obidoh described the perpetrators as dark-skinned black males, who were approximately five feet eight inches tall, weighing between 150 and 160 pounds, with low haircuts, and were between the ages of 19 and 22. Obidoh did not identify any of the perpetrators from photo line-ups shown to him by law enforcement. Obidoh did, however, provide law enforcement with the telephone number that the perpetrators used to call for the taxi service. The phone number provided by Obidoh was the same phone number that was used to call Thomas.

          The lead detective assigned to investigate the three robberies subpoenaed the telephone records for the number that was used to request taxi service from Thomas and Obidoh. The records showed that the phone number was registered to a business, Diva Inspired, LLC, which was owned by Gay's mother. The call Thomas received for taxi service originated from the city of Atlanta, and the phone was also in the Bouldercrest area around the time of Obidoh's robbery. A search of the cellular phone revealed a photograph of a silver-plated handgun. Gay's mother allowed Gay to use the phone that was registered to her business, and Gay had also let other people use the phone during the summer of 2011.

         The lead detective interviewed Ladarrius Robinson in connection with the crimes, and Robinson provided him with a written and recorded statement. In Robinson's written statement, he stated that on June 26 or June 27, he was with Gay[2]and his cousin, Jermaine Cheek, and that he was aware that Cheek and Gay were going to rob taxi drivers. Robinson provided a detailed account of three different robberies in which he, Cheek, and Gay robbed taxi drivers, and he stated that Gay was the only person that carried a firearm during the offenses.[3]

         Gay was indicted for three counts of armed robbery (OCGA § 16-8-41) (counts nine, fifteen, and twenty-eight), three counts of possession of a firearm during the commission of a felony (OCGA § 16-11-106) (counts ten, eighteen, and thirty), one count of hijacking a motor vehicle (OCGA § 16-5-44.1) (count sixteen), one count of kidnapping (OCGA § 16-5-40) (count seventeen), and one count of aggravated assault (OCGA § 16-5-21) (count twenty-nine).[4] Gay was found guilty on all counts, and was sentenced to life imprisonment, with a consecutive 5-year prison sentence. Gay filed a motion for new trial, which the trial court denied. This appeal followed.

         1. First, Gay argues that the evidence was insufficient to support his convictions for the two counts of armed robbery, two counts of possession of a firearm during the commission of a felony, and one count of aggravated assault, that pertain to the offenses involving Thomas and Obidoh. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. 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.

(Citation omitted.) Harvey v. State, 344 Ga.App. 761, 763 (811 S.E.2d 479) (2018). Here, as to the offenses at issue,

[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 the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.

OCGA § 16-8-41 (a). As to a charge of aggravated assault,

A person is chargeable with aggravated assault under OCGA § 16-5-21 (a) (2) when he commits the offense of simple assault with a deadly weapon. OCGA § 16-5-20 states: (a) a person commits the offense of simple assault when he either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.

(Citation and punctuation omitted.) Harris v. State, 273 Ga.App. 90 (614 S.E.2d 189) (2005). Moreover, a person is chargeable with possession of a firearm during the commission of a felony when that person "ha[d] on or within arm's reach of his or her person a firearm during the commission of, or the attempt to commit [a]ny crime against or involving the person of another[.]" OCGA § 16-11-106 (b) (1). We note that Gay was indicted individually and as a party in the commission of the crimes.

A participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Whether [Gay] was a party to the crimes and aided and abetted [Robinson] in the commission of [the offenses] is a jury question.

(Citations and punctuation omitted.) Huntley v. State, 331 Ga.App. 42, 43 (1) (769 S.E.2d 757) (2015).

         We conclude that the record contains evidence from which a jury could find that Gay was, at the very least, a party to the crimes involving Thomas and Obidoh, and thus Gay's insufficient evidence claim fails. Here, Obidoh testified that after dropping off two male passengers at the Bouldercrest apartment complex, one of the passengers pointed a gun at his head and took $125 from his pocket. Although Obidoh did not identify Gay in a photo line-up, the telephone number that the assailants used to call for taxi service was registered to a business that was owned by Gay's mother. Thomas testified that after dropping off the suspects at the Bouldercrest apartments, the passenger seated behind him began to choke him at gunpoint and took his money and cellular phone. Thomas identified Robinson as one of the assailants in the robbery. Robinson submitted a written statement to law enforcement, which was admitted into evidence, wherein Robinson said that Gay spoke with him regarding how Gay and Cheek "rob taxis." Robinson also stated that Gay was the only person that carried a firearm during the robberies. Thus, sufficient evidence exists within the record from which a jury could find that Gay was, at least, a party to the crimes involving Thomas and Obidoh.

         To the extent that Gay argues that Robinson's initial statement to law enforcement implicating him in the offenses was not sufficiently corroborated, we are unpersuaded. "When the only witness is an accomplice, corroborating evidence is required to support a guilty verdict." Raines v. State, 304 Ga. 582, 587 (2) (a) (820 S.E.2d 679) (2018); see also OCGA § 24-14-8.

Although OCGA § 24-14-8 provides that corroboration is required to support a guilty verdict in felony cases where the only witness is an accomplice, only slight evidence of corroboration is required. The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant's conduct before and after the crime was committed may give rise to an inference that he participated in the crime. The evidence need not be sufficient in and of itself to warrant a conviction, so long as it is independent of the accomplice's testimony and directly connects the defendant to the crime or leads to the inference of guilt. The sufficiency of the corroboration is a matter for the jury to decide. And in considering sufficiency, we must consider all the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.

(Citations and punctuation omitted.) Id. at 588 (2) (a). "Further, our law does not require corroboration of every particular of an accomplice's testimony or that the corroborating evidence match the testimony of the accomplice in every detail." Daniels v. State, 339 Ga.App. 837, 840 (795 S.E.2d 94) (2016).

         Here, there was sufficient evidence to corroborate Robinson's initial statement to police that implicated Gay in the crimes against Thomas and Obidoh. In each of the robberies involving the three victims, the victims testified that they picked up two or three black passengers who placed a call for taxi cab service. The same telephone number was used to call for taxi cab service for the crimes involving Thomas and Obidoh. Subscription records showed that the telephone number was registered to a business owned by Gay's mother, and Gay's mother testified that she allowed her son to use her business phone. In each case, the victims testified that after picking up the patrons and arriving at the destinations, they were each attacked, threatened with a firearm, and robbed of their money and other belongings. Aitsalah identified Gay as his assailant. Moreover, all three robberies in this case ...


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