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Carmichael v. State

Court of Appeals of Georgia, Second Division

November 1, 2019

CARMICHAEL
v.
THE STATE.

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

          Reese, Judge.

         A Chattooga County jury found James Carmichael ("the Appellant") guilty of armed robbery, robbery, aggravated assault, possession of methamphetamine, two counts of possession of a firearm by a convicted felon, three counts of possession of a firearm during the commission of a felony, and three counts of possession of a firearm by a convicted felon during the commission of a crime.[1] The trial court sentenced him as a recidivist, [2] to serve a life sentence without the possibility of parole, followed by 45 years in confinement with no possibility of parole, as well as a consecutive sentence of 13 more years in confinement.

         The Appellant seeks review of the denial of his motion for new trial, arguing that the trial court erred by permitting him to withdraw his motion to bifurcate the trial, and permitting evidence under OCGA § 24-4-404 (b) ("Rule 404 (b)"), as well as evidence of his prior convictions. He also argues that he received ineffective assistance of counsel when trial counsel withdrew his motion to bifurcate and failed to object to receiving untimely notice pursuant to Rule 404 (b). For the reasons set forth infra, we affirm.

         Viewed in the light most favorable to the jury's verdict, [3] the record shows that, Tommy Wilson, an admitted drug addict, testified that he met the Appellant on January 22, 2016, through Paige Blalock, Wilson's drug dealer, when Blalock brought the Appellant to Wilson's home, where Wilson lived with his cousin, P. W. Wilson testified that, on that day, Blalock brought methamphetamine, and Wilson traded his handgun for the drugs. He also held Blalock's cell phone as collateral because she did not have enough drugs to cover the cost of the gun. Three days later, Blalock and the Appellant returned to Wilson's home and Blalock retrieved her cell phone. Blalock left the Appellant at Wilson's home, leaving him with Wilson and P. W., and Wilson noticed that the Appellant carried the handgun that he (Wilson) had traded to Blalock.

         Wilson testified that the Appellant was angry that Blalock left him at Wilson's house, stating, "[Blalock] left with the money." The three men used methamphetamine, and the Appellant spent the night at Wilson's home. Wilson testified that, on January 26, the Appellant stated that he wanted to go shopping for something to drink. Wilson further testified that, at around 2:00 p.m., he, the Appellant, and P. W. took Wilson's Dodge Durango and, at the Appellant's direction, Wilson drove to a back alley behind TJ's Package Store. Wilson testified that, as he drove to the store, he saw the Appellant put on pink gloves and a mask that looked like "a folded up poncho" that covered his entire face. According to Wilson, the Appellant exited the truck while wearing Wilson's hooded camouflage jacket and carrying Wilson's cell phone and the handgun.

         Wilson testified that, while the Appellant was in the package store, Wilson drove around near the store because he "fear[ed] for [his] life" and the Appellant had told him "not to sit [in the alley]." As he continued driving, Wilson saw the Appellant leave the package store wearing the mask and pink gloves, and carrying "two liquor bottles and a [plastic] bag." The Appellant got into Wilson's vehicle, and Wilson drove back to his residence. Wilson testified that, after arriving at his home, he did not want the Appellant to come inside, telling him that "whatever [the Appellant] was going to do[, ] he was going to have to do it out in the front yard[.]" The Appellant responded by putting the two liquor bottles on Wilson's front porch and pointing the handgun at Wilson. Wilson testified that Blalock drove up and picked up the Appellant from the front yard. He further testified that he found his camouflage jacket inside his vehicle. P. W. put the liquor bottles in a bookbag and "dumped it [into the Chattooga River]." In the meantime, Wilson saw that a picture of his Durango had been "posted all over Facebook[ ]" by law enforcement. Wilson pled guilty to being a party to the armed robbery and for drug possession, and he identified the Appellant at trial as the person he had dropped off and picked up from the package store.

         At around 4:00 p.m. on January 26, 2016, while M. D. worked at TJ's Package Store, a black man wearing a "solid" face mask, cap, camouflage jacket, and pink gloves walked into the store with a "chrome looking" handgun that he pointed at M. D. The robber told M. D. to "open the register." M. D. put his hands in the air and told the robber, "just calm down, you can have the money[.]" The robber walked around the counter, and while still pointing the gun, told M. D. to get a plastic bag and put the money into it. M. D. complied, and the robber backed away from the counter with the bag of money. The robber grabbed a pint of liquor, telling M. D. "not to move[.]" M. D. told the robber, "you can have [the money, ] I'm going to go to the cooler and wait." The robber told M. D. that he (M. D.) needed to get in to the cooler "now[.]" M. D. walked to the cooler and grabbed the door handle. M. D. turned around, walked up one of the store aisles, after hearing the door bell "ding," and saw that the robber had left. When M. D. did not see anyone in the parking lot, he called 911 and the store's owner. M. D. testified that a jacket and shoes in evidence were consistent with those worn by the robber. M. D. also described the store's video surveillance system and authenticated the surveillance footage of the incident, and the video was played for the jury.

         In addition to this evidence about the instant crimes, the State also introduced evidence of three prior armed robberies committed by the Appellant in 2002.[4] K. P., a former owner of a convenience store located in a neighborhood in Floyd County, testified that, at around 8:00 p.m. on November 21, 2002, a man, wearing a mask and gloves, pointed a handgun at him, and said, "give me all the money [that] you have." K. P. told his employee to remove the money from the store's safe, while the robber continued to point the gun at him. K. P. testified that the employee followed K. P.'s instructions, "wrapped [about $4, 000 in cash] in a paper bag and gave it to [the robber]." He further testified that the robber's mask covered his entire face, except for his eyes. K. P. testified that he could not identify the robber at the time the robbery occurred. However after the robber pled guilty to the armed robbery and two counts of aggravated assault, K. P. realized that the robber was the Appellant, who had been a regular customer at his store. A certified copy of the conviction and the Appellant's 20-year sentence were admitted into evidence over the Appellant's objection.

         R. S. testified that, on the evening of December 19, 2002, she worked at a "drive through" package store located in Gordon County. She testified that a woman bought a bag of chips, but later returned to exchange the bag. When R. S. turned around, she saw the woman, standing to the side, and she saw a black man wearing a "hunting mask" that covered his face, except for his eyes, pointing a "silver pistol" at her. When the robber told her to give him the money, R. S. walked into the store's cooler. R. S. testified that, while she was in the cooler, she heard a gunshot. When R. S. left the cooler, she discovered that the robber had taken the cash register. R. S. testified that the robber was a stranger, and she did not know if he had been a customer of the store prior to the robbery. R. S. testified that the Appellant pled guilty to the armed robbery and possession of a firearm during the commission of a crime. A certified copy of the conviction and the Appellant's 25-year sentence were admitted into evidence over the Appellant's objection.

         A. C. testified that at approximately 2:00 a.m. on December 29, 2002, she was working at a Texaco gas station and convenience store in Gordon County. While she was a short distance away from the cash register, a black man wearing a ski mask jumped over the store countertop and pointed a handgun at her. A. C. testified that the robber's ski mask did not cover his eyes or his mouth. The robber demanded the money from the cash register and took a "bank bag" out of the store's safe. A. C. testified that the robber fled in a vehicle, but was arrested that same day. According to A. C., she was unable to identify the robber because of the mask, and she did not know the Appellant. A certified copy of the Appellant's guilty plea to armed robbery and his 20-year sentence were admitted into evidence over the Appellant's objection.

         On February 1, 2016, officers with the Chattooga County Sheriff's Department and other law enforcement agencies executed a search warrant for Room 109 of a motel in Chattooga County, where they arrested the Appellant and another man, and seized a methamphetamine pipe and a loaded handgun.

         After his conviction on the instant charges, the Appellant filed a motion for new trial. The trial court conducted a hearing and denied the Appellant's motion. This appeal followed.

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, [5] 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.[6]

         "The standard of Jackson v. Virginia[7] is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crime charged."[8] With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

         1. The Appellant argues that the trial court erred by allowing him to withdraw his motion to bifurcate the trial. In his appellate brief, the Appellant failed to provide argument or citations of authority in support of this enumerated error. Therefore, we deem this argument abandoned.[9]

         2. The Appellant argues that the trial court erred in permitting evidence of his three prior armed robbery convictions and sentences under Rule 404 (b). He also contends that the trial court erred in allowing the sentencing information from the three prior convictions. We affirm for the reasons set forth below.

         Rule 404 (b) states, in pertinent part, that

[e]vidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

         OCGA § 24-4-403 ("Rule 403") provides that "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Construed together,

extrinsic act evidence may be admitted if a three-part test is met: (1) the evidence is relevant to an issue in the case other than the defendant's character, (2) the probative value is not substantially outweighed by the danger of unfair prejudice as required by Rule 403, and (3) there is sufficient proof for a jury to find by a preponderance of the evidence that the defendant committed the prior act.[10]

         During the Rule 404 (b) hearing, the State sought to admit the Appellant's prior convictions to show "intent and knowledge, that [the Appellant] had a willingness to use a firearm to get money to enrich himself."[11] The trial court ruled that the State could present all three prior guilty pleas of the Appellant's previous convictions for armed robbery, finding they were "clearly relevant on the issue[s] of knowledge, intent, identity, motive[, ] and opportunity[, ]" and they met "all the tests [under ...


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