text:
    A12A2172.
    BRAZIEL v. THE STATE.
    (739 SE2d 13)
   BARNES, Presiding Judge.

Ernest Lee Braziel was indicted for aggravated assault on a peace officer, terroristic threats, simple battery, possession of hydrocodone, possession of alprazolam, possession of marijuana, two counts of obstruction of an officer, and crossing the guard line of a correctional institution with drugs. After a jury trial, Braziel was found guilty of aggravated assault on a peace officer, simple battery, possession of alprazolam, possession of marijuana, and crossing the guard line. The trial court granted Braziel’s motion for a directed verdict on the possession of hydrocodone count, and the jury found him not guilty on the counts for obstruction of an officer and terroristic threats. Braziel filed a motion for new trial and, following a hearing, the trial court denied the motion. It is from that order that he now appeals, contending that the evidence was insufficient to sustain the aggravated assault on a peace officer conviction, and that the trial court erred in its charge on aggravated assault. Following our review, we affirm.

After a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” Powell v. State, 310 Ga. App. 144 (712 SE2d 139) (2011). Moreover, we “do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” (Footnote omitted.) Id.

So viewed, the evidence shows that several officers with the Dade County Sheriff’s office went to Braziel’s grandparents’ home where he lived to serve him with a felony arrest warrant. After Braziel was handcuffed, an officer conducted a pat-down search and discovered a bottle with the prescription label removed that contained pills that were later identified as alprazolam, a schedule IV controlled substance. Braziel struggled with the deputy as he was led out of the house, then “threw his head back and head butted [the deputy] in the mouth and . . . [tried] to get away from [him].” As the deputy and Braziel continued to struggle, the deputy heard Braziel say “sic him boy, get him, sic him.” The deputy “took [Braziel] to the ground” to control him until he could get additional help with the arrest. As he held Braziel on the ground, the deputy felt a sharp pain and saw that Braziel’s pit bull had “locked down” on his leg. The deputy hit the dog repeatedly with his flashlight as Braziel continued to “holler[ ] sic him boy, bite him.” As the deputy continued to hit the dog, it eventually released its grip, and Braziel’s grandfather grabbed the dog and pulled it back.

As the officers restrained Braziel and put him in a patrol car for transport, he continued with a profanity-laden tirade, and spit in the face of another deputy. Braziel also bragged about his dog attacking the deputy. The deputy testified about the wounds to his leg caused by the dog attack. He described areas where puncture wounds had “hit the bone” and another area where because “the meat was gone, they couldn’t sew it all the way up, so I still have a hole there.”

1. In three enumerations of error, Braziel challenges the sufficiency of the evidence to sustain his conviction for aggravated assault premised on the attack from the dog. He contends that the evidence did not show that he caused the dog to attack the officer and that other factors, including the other officers, patrol cars, and a K-9 dog at the scene could have provoked the dog to attack the officer.

“A person commits the offense of aggravated assault when he assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). The use of a dog can he considered use of a deadly weapon. Michael v. State, 160 Ga. App. 48 (1) (286 SE2d 314) (1981). The officer who was assaulted testified that Braziel yelled to his dog “sic him boy, bite him” before the dog attacked the officer. Another deputy testified that the dog had been aggressive in past encounters at Braziel’s home, but that “Braziel ha[d] usually called it off.” Despite Braziel’s contentions otherwise, this evidence was sufficient to authorize the jury’s finding that appellant was guilty of aggravated assault on a law enforcement officer beyond a reasonable doubt. See Perkins v. State, 197 Ga. App. 577, 580 (3) (398 SE2d 702) (1990).

2. Braziel also contends that the trial court erred in its instruction to the jury that the aggravated assault could be committed in a way not specified in the indictment.

Our review of the charge demonstrates that the trial court properly instructed the jury that “a person commits the offense of aggravated assault when that person assaults another person with any object, device or instrument that when used offensively against a person is likely to, or actually does result in serious bodily injury.” The trial court further instructed the jury that “a dog, if and when used in making an assault upon another person is not a deadly weapon per se. But [it] may or may not be a deadly weapon depending on the manner in which it is used and the circumstances of the case.” The trial court also instructed the jury that in “deciding whether the alleged instrument was a weapon capable of causing serious bodily injury you may consider direct proof of the character of the weapon, in this case, the dog.”

Decided February 26, 2013.

Edgar A. Callaway, Jr., for appellant.

Braziel correctly maintains that a charge that instructs the jury that a crime may be committed in a way not alleged in the indictment is error. We have held:

It is error to charge the jury that a crime may be committed by alternative methods, when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.

(Citations and punctuation omitted.) Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992).

In this case, however, contrary to Braziel’s contention that the instruction permitted the jury to convict him of a crime not charged in the indictment, the charge tracked the assault language of OCGA § 16-5-21 (a) (2), under which Braziel was indicted, and addressed the specific instrument of the assault that was alleged in the indictment, assault with “a dog, an instrument which when used offensively against a person is likely to result in serious bodily injury.”

. Under these circumstances, the trial court did not authorize a conviction in a manner not alleged in the indictment. Compare Blige v. State, 208 Ga. App. 851, 852 (432 SE2d 574) (1993) (reversing aggravated assault conviction where instruction emphasized that jury could convict defendant of aggravated assault if it found that he assaulted victim “with intent to rob,” rather than with an offensive weapon as alleged in the indictment), aff d on other grounds by 264 Ga. 166 (441 SE2d 752) (1994).

Judgment affirmed.

McFadden and McMillian, JJ., concur.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

       OCGA §§ 16-13-28 (a) (1); 16-13-30 (a).

       Braziel was indicted for aggravated assault on a peace officer by knowingly making “an assault upon the person of ... a peace officer, with a dog, an instrument which when used offensively against a person is likely to result in serious bodily injury, by commanding said dog to attack said officer while said officer was engaged in the performance of his official duties.”


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A12A2233.
    THE STATE v. BOYKIN.
    (739 SE2d 16)
   MCFADDEN, Judge.

The state appeals from a trial court order granting Timothy Boykin’s plea in bar and dismissing criminal charges due to expiration of the applicable statutes of limitation. The state argues that the statutes of limitation had been tolled by the “person unknown” exception. However, that exception does not apply in this case because Boykin was not an unknown person, and instead was one of the state’s primary suspects shortly after the alleged crimes were committed. Accordingly, we must affirm.

The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the issues of law. As this ruling involves a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

(Citations and punctuation omitted.) Royal v. State, 314 Ga. App. 20, 21 (1) (723 SE2d 118) (2012).

The evidence shows that in the early morning hours of July 23, 1994, a woman reported to the Summerville police that a man had broken into her house, raped her and then fled. Police went to the scene and learned that Boykin had recently been seen in the immediate area of the house, as had another man, Curtis Avery. Based on their investigation of the scene, the police concluded that the attacker had disrobed outside the house, left his clothes on the lawn which had grass clippings on it, and then entered the home. Investigators observed that a trail of footprints in the dew on the ground led almost directly to Boykin’s house. The police interviewed Boykin later that morning and discovered grass clippings in his underwear.

Based on the alleged victim’s identification of Avery’s voice as similar to that of her attacker, the state initially charged Avery with the crimes. But in May 1995, Avery was eliminated as a suspect because his DNA did not match that from semen and spermatozoa found on the victim’s panties. Around that same time in 1995, Boykin pled guilty to crimes arising from another similar incident in Summerville, during which he entered a different victim’s house in the middle of the night and committed a sexual assault. Boykin has been incarcerated since that time. But he was not indicted for any crimes arising from the July 1994 incident until 2011, when the state discovered a putative match between his DNA and that found on the alleged victim’s underwear. In 2011, Boykin was indicted for aggravated assault, two counts of armed robbery, two counts of rape and three counts of burglary for the July 1994 incident.

The trial court dismissed all the charges, ruling that the four-year statutes of limitation for aggravated assault and burglary, the seven-year statute of limitation for armed robbery, and the fifteen-year statute of limitation for rape had all expired. See OCGA § 17-3-1 (b), (c). The state appeals.

1. Statutes of limitation.

“In criminal cases, the period of limitation runs from the commission of the offense to the date of the indictment.” (Citations and punctuation omitted.) Duke v. State, 298 Ga. App. 719, 720 (1) (681 SE2d 174) (2009). Such

criminal limitations statutes are to be liberally interpreted in favor of repose. [Moreover, t]he burden is unquestionably upon the state to prove that a crime occurred within the statute of limitation, or, if an exception to the statute is alleged, to prove that the case properly falls within the exception.

(Citations and punctuation omitted.) State v. Robins, 296 Ga. App. 437,439 (674 SE2d 615) (2009). “ Tf a defendant prevails on a pretrial plea in bar on the statute of limitation[ ], the charge should be dismissed.’ [Cit.]” State v. Conzo, 293 Ga. App. 72, 74 (2) (666 SE2d 404) (2008).

As the trial court ruled in this case, since the alleged offenses were committed on July 23, 1994, the respective four-year, seven-year and fifteen-year statutes of limitation had all expired well before the 2011 indictment. Thus, in order to avoid dismissal, the state bears the burden of proving that the case falls within an exception to the statutes of limitation.

2. DNA exception.

We note that the state does not claim that the “DNA exception,” as set forth in former OCGA § 17-3-1 (c.l), applies to this case. Rather, at the plea in bar hearing and in its appellate brief, the state has acknowledged that the physical evidence allegedly containing DNA evidence was destroyed, and the parties’ stipulation of facts indicates that no portion of that evidence was retained for further testing. Accordingly, the state concedes that it cannot rely on the provisions of former OCGA § 17-3-1 (c.l) to avoid the expiration of the applicable statutes of limitation.

Decided February 26, 2013.

3. Person unknown exception.

The state does rely on OCGA § 17-3-2 (2), which provides in pertinent part that “[t]he period within which a prosecution must be commenced under [OCGA §] 17-3-1 or other applicable statute does not include any period in which... [t]he person committing the crime is unknown.” The state reasons that it did not have actual knowledge that Boykin was the perpetrator until it obtained the DNA results in 2011, and thus the statutes of limitation were tolled until that time. However, the Supreme Court of Georgia has held

that the General Assembly intended for the “person unknown” tolling exception to apply to a situation... where there is no identified suspect among the universe of all potential suspects. The tolling exception to the statute of limitations cannot be based upon the subjective opinion of the district attorney as to whether there was enough evidence to file charges against a particular person. Otherwise, there would be tolling of the statute of limitations for routine investigation into a crime. . . . Such a broad interpretation of the tolling period would permit the exception to swallow the rule.

Jenkins v. State, 278 Ga. 598, 603 (1) (A) (604 SE2d 789) (2004).

The instant case is not one in which there was no identified suspect. On the contrary, the evidence unequivocally shows that the state had actual knowledge of Boykin’s identity as one of two suspects almost immediately after the crime occurred in 1994. Indeed, according to the testimony of the former Summerville chief of police, at the time of the initial investigation “Mr. Boykin was the prime suspect for the incident.” And in 1995, after the other suspect, Avery, had been eliminated by DNA results as the perpetrator, Boykin was again the state’s prime suspect. Accordingly, the “person unknown” exception does not apply, and “we affirm the trial court’s ruling on the dismissal of the . . . charges due to the expiration of the statute [s] of limitation[ ].” (Citations omitted.) Jenkins, supra.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

Herbert E. Franklin, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellant.

David J. Dunn, Jr., for appellee.


author: RAY, Judge.

text:
    A12A2021.
    BROWN v. THE STATE.
    (739 SE2d 32)
   RAY, Judge.

A jury found Gary Eugene Brown, Jr., guilty of one misdemeanor count of obstructing an officer. He appeals from the denial of his motion for a new trial, contending that the evidence was insufficient to sustain his conviction. Specifically, he contends that the State failed to carry its burden of showing that the police officer was acting lawfully at the time of Brown’s arrest, as required by OCGA § 16-10-24 (a). For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on July 13, 2008, an officer with the Johnson County Sheriff’s Department stopped the vehicle in which Brown was a passenger because no license tag was displayed. When the vehicle stopped, Brown immediately got out and approached the police car. The officer, who could smell alcohol on Brown, told Brown to get back in the passenger side of the car, but instead, Brown began moving toward the driver’s side. The officer again told Brown to get in the car on the passenger side, and Brown refused, instead continuing to approach the driver’s side of the vehicle. The officer testified that after Brown came back from the driver’s side of the car, he called Brown to him, but that when Brown “showed aggression,” he concluded Brown “was dangerous.” As the only law enforcement officer on the scene, for his own safety, the officer had called Brown to him intending to perform a pat-down. He first asked Brown for identification, but Brown did not have any. The officer then asked Brown if he had any weapons. Brown said no. When the officer asked Brown for consent to search, Brown consented. However, when the officer told Brown he was going to pat him down, Brown began to reach into his pocket, and the officer, unsure of whether he had a weapon, grabbed Brown’s hand and told him not to put it in his pocket. Brown became belligerent, and the officer testified that Brown “snatche[d] away” from him. The officer then pulled out his taser and placed it on Brown, but did not tase him. He told Brown to put his hands behind his back “because I’m not gonna fight with nobody on the side of the road.” The officer then put his taser away and retrieved his handcuffs. As he approached Brown again, the officer testified that Brown swung “around with his elbow as I come to him then, and he tries to hit me again.” The officer handcuffed Brown and arrested the driver of the vehicle, who was underage and driving without a license or proper tag.

OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.”

Here, Brown contends that the evidence was insufficient to convict him. Brown argues that the indictment charged him with “resisting and attempting to strike” the officer, but asserts that the State has not shown that at the time of this conduct, the officer was engaged in the lawful discharge of his official duties. Brown argues that the State was required to prove the officer acted lawfully in searching him. He argues that there was no evidence of any threat to the officer prior to the attempted pat-down and handcuffing, and that any resistance or attempt to strike occurred during the handcuffing or after it. Thus, Brown contends, the officer lacked probable cause to arrest him for obstruction as he was not engaged in the lawful discharge of his duties. This argument lacks merit.

First, the State need not prove forcible resistance or violence to sustain a conviction for misdemeanor obstruction, and it follows that an officer need not wait until a person attempts to strike him before he can arrest that person for obstruction. Here, the officer testified that after Brown became belligerent and repeatedly refused to return to the passenger compartment of the vehicle, the officer, unsure of whether Brown had a weapon, received Brown’s consent to search and attempted to pat him down. When he did so, Brown “snatched away.” In similar cases, this Court has found resistance to or hindrance of an officer sufficient to justify an arrest for obstruction and a subsequent conviction, where a defendant, as here, repeatedly refused to return to his vehicle after the officer, seeking to protect his own safety, told him to do so. Thus, the officer had sufficient probable cause to arrest appellant for obstruction even before the officer attempted the pat-down to which Brown had consented.

Decided February 27, 2013.

Steven M. Harrison, for appellant.

L. Craig Fraser, District Attorney, Tafara C. Makaya, Assistant District Attorney, for appellee.

The officer further testified that he was unable to complete the search prior to arrest because Brown had been “swinging at my head” and because he needed to “gain[ ] control of the situation.” The officer also testified that after he got out his handcuffs, Brown “swings around with his elbow as I come to him then, and he tries to hit me again,” indicating that Brown had previously attempted to strike him. This testimony provides evidence that, when viewed in the light most favorable to the verdict, Brown’s attempt to strike the officer occurred prior to Brown’s arrest; thus, there is no indication that the officer was acting unlawfully. Although at certain points the officer’s testimony as to the timing of various actions was not entirely consistent, “when deciding an appeal, this Court does not evaluate witness credibility, evidentiary conflicts, or inconsistent testimony, as these matters are within the finder of fact’s exclusive province.” Further, the question of whether Brown’s behavior actually obstructed the officer was for the jury. The evidence outlined above was sufficient to authorize Brown’s conviction.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-10-24 (a).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       (Emphasis supplied.)

       To the extent that Brown may be attempting to assert a fatal variance between the charges in the indictment and the evidence adduced at trial, this argument is waived as it was neither raised nor ruled on below. See Weeks v. State, 316 Ga. App. 448, 450 (1) (729 SE2d 570) (2012).

       See Wilcox v. State, 300 Ga. App. 35, 37 (2) (684 SE2d 108) (2009).

        Arsenault v. State, 257 Ga. App. 456, 457 (1) (a) (571 SE2d 456) (2002); Higgle v. State, 236 Ga. App. 847, 849 (1) (b), n. 1 (512 SE2d650) (1999) (officers were authorized, for their own safety, to request that defendant remain in car until investigation was complete).

        Council v. State, 291 Ga. App. 516, 516-517, 517-518 (2) (662 SE2d 291) (2008) (arrest for obstruction warranted where defendant refused officer’s request to return to his vehicle and jerked away when officer attempted to effectuate arrest).

       (Emphasis supplied.)

       (Footnote omitted.) McClure v. State, 278 Ga. 411, 411-412 (1) (603 SE2d 224) (2004).

        Kates v. State, 271 Ga. App. 326, 328 (2) (b) (609 SE2d 710) (2005).


author: PHIPPS, Presiding Judge.

text:
    A12A2056.
    SIMON v. THE STATE. McCLAIN v. THE STATE. TRIM v. THE STATE.
    A12A2171.
    A12A2460.
    (739 SE2d 34)
   PHIPPS, Presiding Judge.

In connection with a home invasion, Walter Simon, Cortez McClain and Anthony Trim were tried together on charges of felony murder, armed robbery, burglary, aggravated assault, and false imprisonment. Simon and McClain were found guilty of attempted armed robbery (as a lesser included offense of armed robbery), burglary, and false imprisonment, and not guilty of felony murder and aggravated assault; Trim was found guilty of attempted armed robbery (as a lesser included offense of armed robbery), burglary, aggravated assault, and false imprisonment, and not guilty of felony murder. Simon, McClain and Trim appeal, each challenging the sufficiency of the evidence to support his convictions. McClain also challenges the court’s grant of the state’s motion to excuse one juror for cause. Simon’s and Trim’s challenges are without merit, so we affirm their convictions. McClain’s challenge to the grant of the motion to excuse the juror for cause has merit, so his convictions are reversed. However, because the evidence was sufficient to support McClain’s convictions, McClain may be retried.

Case No. A12A2056

1. Simon contends that the evidence was insufficient to support his convictions. We disagree.

When an appellant challenges the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Viewed in the light most favorable to the prosecution, the evidence showed the following. On June 16, 2010, Erick Moncrieffe was in the home of his friend, Travys Davy, when he heard the doorbell ring. Moncrieffe saw that McClain, whom he knew, was at the front door. Moncrieffe opened the door and, “a split second” later, two masked men came inside and put handguns to Moncrieffe’s face. Moncrieffe was struck on the head or “pistol-whipped,” and ordered to walk to the kitchen. The three men followed Moncrieffe to the kitchen. Moncrieffe was ordered to open the garage door and sit down.

A woman then entered the house through the garage. Moncrieffe recognized the woman, who was not masked, as someone who had previously visited the house with McClain. Using black masking or duct tape, the woman bound Moncrieffe’s hands and covered his eyes.

Moncrieffe was ordered to tell Davy, who was upstairs, to come downstairs. Moncrieffe did not comply, and he was pistol-whipped repeatedly; he sustained injuries to his head. Davy heard the commotion and, when he looked out of his bedroom door, saw a masked gunman. Davy stayed upstairs; he retrieved a rifle and directed another resident to call police.

Moncrieffe was ordered to “kick it out,” which Moncrieffe was told meant “give me your stuff.” The intruders stood over Moncrieffe and repeated their demands, saying, “Tell him to come downstairs; you won’t make it.” They continued to pistol-whip him. Moncrieffe’s wallet (which contained cash) and his cell phone were taken. McClain had said nothing during the incident. The intruders left about 30 minutes after they had entered the house.

Moncrieffe then managed to remove the tape from his hands and head, and he ran through the house. He grabbed the rifle from Davy, who had come downstairs. Davy opened the front door and heard police sirens. Moncrieffe and Davy went outside, where they saw a vehicle in front of the house. Two people hurriedly entered the vehicle.

Shots were fired from the vehicle as it was being driven away. When Moncrieffe was asked at trial if he could see whether the occupants of the vehicle were the people who had just been in the house, he replied that he saw the mask, and said or thought, “that’s them.” Moncrieffe added that he recognized the vehicle (“like a Buick ... an old car”) as one that had been at the house two days earlier. Moncrieffe returned fire, and the vehicle left the neighborhood.

A police officer responding to a “shots fired” call at about 2:00 p.m. on the date of the incident observed a 1993 (“older”) Lincoln automobile traveling at a high rate of speed; the vehicle was leaving Davy’s subdivision as the officer was entering the subdivision. The officer observed that the vehicle had a bullet hole in the rear window and was occupied by several males. With the siren and emergency lights on his police vehicle activated, the officer pursued the vehicle. The pursued vehicle crashed, and the officer, who was the first officer to arrive on the scene, saw a man with “dreads” jump out of the rear door of the vehicle and run away; at trial, Davy described McClain as having “dreads” (and the state introduced photographs of McClain, with his hairstyle visible, taken days after the incident). Four individuals remained in the vehicle; Simon was the driver, and Trim and Casey were the rear passengers. The passenger in the front seat of the vehicle, Devonte Bowles, was wearing a mask and was not moving; he had sustained a gunshot wound to the head and later died as a result of the injury.

A police corporal also responded to the dispatch call. He saw “a mid 90s model” Lincoln automobile traveling erratically and at a high rate of speed. With the siren and emergency lights on his vehicle activated, he began pursuing the vehicle. The corporal then saw the pursued vehicle leave the roadway and crash. At the crash site, the corporal observed that the injured front-seat passenger, Bowles, was wearing a mask. Officers found two handguns at the crash site — one on the ground near the vehicle, and another in the front passenger seat area of the vehicle. The vehicle was equipped with hand controls that allowed it to be operated without foot pedals; Simon told police he had been paralyzed as a result of an earlier injury and was unable to walk.

In an interview conducted on the day of the incident, Simon told a police detective that he had been asked to drive his vehicle to Davy’s house to buy marijuana, and that Bowles and Casey were with him. Simon said that he had waited in the driveway while the vehicle’s other occupants went inside the house, and that when they exited the house, Bowles was wearing a mask. After they entered the vehicle, a man exited the house and began shooting at the vehicle.

In another interview conducted the same day, Trim, after being advised of and waiving his Miranda rights, admitted to a police detective that “a plan to do this” was discussed in the vehicle during the drive to Davy’s house; that Trim and Bowles had exited the vehicle and entered the house wearing masks and carrying guns; that a woman had the duct tape and a knife; that the intruders had fled without taking property because someone had said that the police were coming; and that he and the woman were in the back seat of the vehicle and Bowles was in the front seat when they left Davy’s house.

The night before the incident, McClain, whom Davy had known for several years, had visited Davy’s home. McClain had been accompanied by Casey and a man; the man stayed in the vehicle during that visit; the group was in the same vehicle that was at Davy’s house on the day of the incident. The day before the incident, Davy had received $40,000 in cash in connection with a music production deal, and most of the money was in the house; Davy had shared this information with McClain.

OCGA § 16-8-41 (a) pertinently provides that a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime. The indictment alleged that Simon, McClain and Trim committed armed robbery when they unlawfully, with intent to commit theft, took Moncrieffe’s currency and cell phone from his person, by use of a handgun.

OCGA § 16-7-1 pertinently provided that a person commits the offense of burglary when he, without authority and with the intent to commit a felony or theft therein, enters or remains within the dwelling house of another. The indictment pertinently alleged that Simon, McClain and Trim committed that offense by unlawfully, without authority, and with the intent to commit a theft therein, entering the dwelling house of another.

OCGA § 16-5-21 (a) (2) pertinently provides that a person commits the offense of aggravated assault when he assaults with a deadly weapon or with any object which, when used offensively against a person, is likely to or actually does result in serious bodily injury. The indictment pertinently alleged that Simon, McClain and Trim committed aggravated assault by assaulting Moncrieffe with a handgun which, when used offensively against a person is likely to result in serious bodily injury, by striking him in the head with the gun and threatening to kill him.

OCGA § 16-5-41 (a) provides that a person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines or detains such person without legal authority. The indictment alleged that Simon, McClain and Trim committed false imprisonment by unlawfully, in violation of Moncrieffe’s personal liberty, confining Moncrieffe without legal authority.

Simon asserts that the evidence was insufficient because the state failed to prove that he knew that an armed robbery would occur, his statement to police that he had driven to Davy’s house for the purpose of buying marijuana was credible, and there was no evidence that he had discussed or participated in the armed robbery. Further, he posits, the circumstantial evidence supported his theory that he went to the house to purchase drugs and “ended up fleeing for his life” after Bowles returned to the vehicle wearing a mask and Moncrieffe emerged from the house shooting at the vehicle.

To support a verdict, circumstantial evidence need exclude only reasonable hypotheses, not exclude every inference or hypothesis except that of the defendant’s guilt. Whether circumstances were sufficient in this case to exclude every reasonable hypothesis except that of defendant’s guilt was a question for the jury. It is only when the evidence is insupportable as a matter of law that the jury’s verdict may be disturbed, even where the evidence is entirely circumstantial.
And,
[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.

It was for the jury to determine the credibility of the witnesses, to resolve any conflicts or inconsistencies in the evidence, to decide the reasonableness of Simon’s hypothesis, and to determine whether he aided and abetted his co-defendants in committing the crimes.

There was evidence that Simon was a party to the crimes, including evidence that he drove one or more of the co-defendants to the house just before the crimes were committed; that he was in the vehicle when plans to commit the crimes were discussed; that he was in Davy’s driveway when Trim and Bowles entered the front door of the house, wearing masks and carrying guns; that his specially-equipped vehicle was at Davy’s house one or two days before the crimes were committed; and that he drove the perpetrators away from the scene after the crimes were committed — speeding, driving erratically, and not stopping when the police, with sirens and lights activated, began following Simon’s vehicle. The jury could have found that Simon’s hypothesis was unreasonable because, inter alia, Simon had left Davy’s neighborhood but did not stop when police vehicles were behind him, even though he purportedly had fled the scene because Moncrieffe was shooting at his vehicle. Although circumstantial, the evidence was sufficient to authorize a rational trier of fact to find that Simon was guilty beyond a reasonable doubt of the crimes for which he was convicted.

Case No. A12A2171

2. McClain contends that the evidence was insufficient to support his convictions because the only evidence of his guilt was Moncrieffe’s testimony, and Moncrieffe was not credible. In any event, he asserts, Moncrieffe had allowed him to enter the house, and there was no evidence that McClain had actively participated in the crimes. The evidence was sufficient.

There was evidence that McClain summoned the residents to the door, and that immediately after Moncrieffe opened the door for McClain, Trim and Bowles, wearing masks and carrying guns, entered the house; that the three men followed Moncrieffe from the front door (McClain was one of the three men at the front door) to the kitchen after Moncrieffe was struck with a gun and ordered to walk to the kitchen; that McClain had brought Casey to Davy’s house the day before the home invasion, using the same vehicle used in the crimes; that a man with “dreads” was seen fleeing from the crashed vehicle and McClain had such a hairstyle at the time of trial; and that Davy had told McClain prior to the home invasion that he had a substantial amount of cash in the house. The fact that Moncrieffe had opened the door for McClain does not mean that McClain committed no burglary. If McClain was present and assisted in the commission of the burglary, he could be convicted as a party thereto.

Credibility was for the jury. Even though the evidence was circumstantial, the jury was authorized to find beyond a reasonable doubt that McClain was guilty as a party to the crimes of which he was convicted.

3. McClain contends that the trial court erred in excusing for cause a juror whose daughter had been prosecuted by one of the assistant district attorneys who was prosecuting the instant case and had been represented by the attorney who was representing Trim in the instant case. Based on the record, we find that the trial court abused its discretion in excusing the juror.

During voir dire, members of the panel were asked en masse a series of statutorily-required questions pertaining to possible juror bias in the case. The jurors were directed to raise their juror cards if they believed that any of the questions applied to them; none of the jurors responded.

The panel was subsequently asked if any juror knew Trim’s attorney, or had a family member or close friend prosecuted by the Gwinnett County District Attorney’s office; one juror gave an affirmative response. The juror revealed that one of the assistant district attorneys prosecuting the instant case had prosecuted her daughter in a prior case, and that the attorney representing Trim in the instant case had represented her daughter in that earlier case.

Trim’s attorney asked the juror: “Based on the fact of our previous dealings, do you feel that there is anything that would prevent you from being fair and impartial to both sides here today?” The juror replied: “I don’t think there is anything that would keep me from being fair and impartial to both sides, but considering that you were my daughter’s attorney and [the assistant district attorney] .. . was the prosecutor, then I would feel uncomfortable sitting in on this case.” No further inquiry was made of the juror regarding possible bias.

The assistant district attorney involved in the prior case moved to excuse the juror for cause, stating that the juror had indicated that she did not think she could serve in the instant case “because I prosecuted her daughter and [Trim’s attorney] defended her daughter”; the assistant district attorney stated the daughter had been tried for armed robbery, and that the daughter’s defense attorney was “not completely successful” in trying the case, but had prevailed in some matters on appeal. The assistant district attorney asserted that he believed that the juror’s answers indicated she “wouldn’t be able to sit and be fair” in the case. The judge interpreted the assistant district attorney’s position as being that the juror was prejudiced against the state.

McClain’s attorney opposed the state’s motion, noting that the juror had said she “would feel uncomfortable,” and adding that she did not believe that the juror had ever been asked the “questions that reach the threshold of whether or not she would be an impartial, unbiased juror.” The court then granted the state’s motion to excuse the juror for cause.

OCGA § 15-12-164 (a) sets out the test for disqualification for cause in felony cases. If a juror answers any of the questions so as to render her incompetent or if she is found to be incompetent by the judge, she shall be set aside for cause. The court shall also excuse for cause any juror who from the totality of her answers on voir dire is determined by the court to be substantially impaired in her ability to be fair and impartial.

Whether to strike a juror for cause lies within the sound discretion of the trial judge, and the trial court’s exercise of that discretion will not be set aside absent a manifest abuse of discretion. A juror’s opinion of her qualification to serve is not determinative of the question, and a juror’s expression of belief in the credibility of a witness does not mandate that the juror be excused for cause. Rather, for a juror in a criminal case to be excused for cause on the statutory ground that her ability to be fair and impartial is substantially impaired, it must be shown that she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will not be able to set it aside and decide the case on the evidence or the court’s charge on the evidence. A juror’s knowledge of, or relationship with, a witness, attorney, or party is a basis for disqualification only if it has created in the juror a fixed opinion of guilt or innocence or a bias for or against the accused. The law presumes that potential jurors are impartial, and the burden of proving partiality is on the party seeking to have the juror disqualified.

“[W]hen a prospective juror has a close relationship with a party or a relationship that suggests bias, the trial court... is statutorily bound to conduct voir dire adequate to the situation, whether by questions of its own or through those asked by counsel.”

In the present case, when the juror was asked the questions required by OCGA § 15-12-164 (a), she indicated that she had not formed an opinion regarding the guilt or innocence of the accused, that she had no prejudice or bias either for or against the accused, and that her mind was perfectly impartial between the state and the accused. Thus, pursuant to OCGA § 15-12-164 (a) (3), she was a competent juror. When asked if, given her previous dealings with ' defense counsel, anything would prevent the juror from being fair and impartial, the juror replied that she did not think so, though she would feel uncomfortable sitting on the jury.

The juror’s relationships with counsel did not necessarily or categorically require her exclusion from the jury. Instead, the relationships were bases for disqualification only if they had created in the juror a fixed opinion of guilt or innocence or a bias for or against the accused. None of the juror’s responses indicated that she held any opinion about the defendants’ guilt or innocence or a bias for or against the accused. Although the circumstances presented here could affect a juror’s impartiality, in this case there was no showing that they had.

As stated above, trial courts have extremely broad discretion in deciding whether to exclude a juror for cause once an adequate inquiry has been conducted. But no adequate inquiry was conducted in this case, and no bias has been shown on the record. Thus, an abuse of discretion resulted.

Accordingly, McClain’s convictions must be reversed. Because the evidence meets the standard of Jackson v. Virginia, the case may be retried.

Decided February 27, 2013.

Brown & Gill, Angela B. Dillon, for appellant (case no. A12A2056).

Maryann F. Blend, for appellant (case no. A12A2171).

Clark & Towne, JessicaR. Towne, for appellant (case no. A12A2460).

Daniel J. Porter, District Attorney, Jimmie E. Baggett, Jr., Assistant District Attorney, for appellee.

Case No. A12A2460

4. Trim contends that the evidence was insufficient to support his convictions because it was based on the testimony of witnesses who were not credible. Again, credibility was for the jury to decide. The evidence was sufficient for a rational trier of fact to find Trim guilty beyond a reasonable doubt of the crimes of which he was convicted.

Embedded in the argument section of his brief, Trim contends that he was misled into making an incriminating statement to police, and that he was in custody for hours, deprived of contact with family or legal counsel prior to his interrogation. To the extent Trim argues that his statement was inadmissible or involuntary, thus asserting two alleged errors within a single enumerated error, the argument will not be reviewed. To the extent Trim argues that his statement was not credible, we reiterate that credibility issues were for the jury to decide.

Judgments affirmed in Case Nos. A12A20S6 and A12A2460. Judgment reversed in Case No. A12A2171. Ellington, C. J., concurs. Dillard, J., concurs in Case Nos. A12A2056 and A12A2460 and in Division 2 of A12A2171 and concurs in judgment only as to Division 3 of A12A2171.

       A fourth individual, Kara Simon Casey, was also charged in the indictment with the same crimes, but her trial was severed from the appellants’ trial.

       See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992) (where appellant’s conviction was reversed due to the court’s erroneous ruling on a motion to excuse a juror for cause, but the evidence was sufficient, appellant could be retried).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (citation omitted).

       The felony murder counts of the indictment involved Bowles’s death.

       OCGA § 16-4-1.

       We apply the version of OCGA § 16-7-1 which was in effect in June 2010, the time of the offense. OCGA § 16-7-1 was amended effective “July 1, 2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense.” Ga. L. 2012, pp. 899, 949, §§ 3-1, 9-1. See Gorman v. State, 318 Ga. App. 535 (1), n. 2 (734 SE2d 263) (2012).

        Buruca v. State, 278 Ga. App. 650, 652-653 (1) (629 SE2d 438) (2006) (footnote omitted).

       Id. at 652 (1).

        Mickens v. State, 277 Ga. 627, 629 (593 SE2d 350) (2004).

        Bush v. State, 317 Ga. App. 439, 441 (1) (731 SE2d 121) (2012).

       Id.

       See Thornton v. State, 292 Ga. 87, 88 (2) (734 SE2d 393) (2012) (evidence was sufficient to prove appellant was a party to the crime of armed robbery and burglary where he drove the getaway vehicle); Bush, supra at 440 (1); Buruca, supra; Jackson v. State, 274 Ga. App. 279, 281 (617 SE2d 249) (2005) (where getaway driver waited for his co-defendant to return to the vehicle, evidence was sufficient to find the driver guilty of crimes directly committed by co-defendant); Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003) (affirming appellant’s conviction as a party to the crime of burglary where she drove the perpetrator to the premises, served as the getaway driver, and sped away from the scene after the burglary was committed).

       See Adcock v. State, 269 Ga. App. 9, 12 (2) (603 SE2d 340) (2004).

        Nangreave v. State, 318 Ga. App. 437, 439 (1) (734 SE2d 203) (2012).

       See id.; Bush, supra; Adcock, supra.

       OCGA § 15-12-164 (a) pertinently provides as follows. On voir dire in a felony trial, the jurors shall be asked:
      (1) “Have you, for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused?” If the juror answers in the negative, the question in paragraph (2) of this subsection shall be propounded to him; (2) “Have you any prejudice or bias resting on your mind either for or against the accused?” If the juror answers in the negative, the question in paragraph (3) of this subsection shall be propounded to him; (3) “Is your mind perfectly impartial between the state and the accused?” If the juror answers this question in the affirmative, he shall be adjudged and held to be a competent juror in all cases where the authorized penalty for the offense does not involve the life of the accused[.]

       The instant case was prosecuted in Gwinnett County.

       At trial, counsel for Simon and Trim joined McClain’s opposition to the state’s motion. On appeal, however, Simon and Trim do not complain of the court’s ruling. Thus, as to Simon and Trim, the ruling is not reviewable. See OCGA § 5-6-40 (the appellant or cross-appellant shall file with the clerk of the appellate court an enumeration of errors which shall set out separately each error relied upon); State v. Crapp, 317 Ga. App. 744, 745 (1) (732 SE2d 806) (2012) (“|T]n order for a Georgia appellate court to review a trial court ruling for legal error, a party must set forth in the enumeration of errors the allegedly erroneous ruling. The appellate court is precluded from reviewing the propriety of a lower court’s ruling if the ruling is not contained in the enumeration of errors.”) (citations omitted); Tyler v. State, 147 Ga. App. 394, 395 (2) (249 SE2d 109) (1978) (where the objection argued below is not argued on appeal, it is considered abandoned).

       See Kim v. Walls, 275 Ga. 177, 178, n. 1 (563 SE2d 847) (2002).

       OCGA § 15-12-164 (c).

       OCGA § 15-12-164 (d).

        Poole v. State, 291 Ga. 848, 851-852 (734 SE2d 1) (2012) (citations and punctuation omitted; emphasis supplied).

       Id. at 853, citing Kim, supra.

       See OCGA § 15-12-164 (a) (3).

       See generally OCGA § 15-12-163, pertinently providing that, upon objection and the judge’s satisfaction of the truth of the objection, the judge shall set aside for cause certain jurors (e.g., a juror that is not a citizen, or a juror that is so near of kin to the prosecutor, the accused or the victim as to be disqualified); Doss v. State, 264 Ga. App. 205, 209 (4) (b), 214 (4) (f) (590 SE2d 208) (2003) (there is no per se rule disqualifying for cause a class or category of persons from jury duty based on employment relationships, except sworn law enforcement officers, and trial courts have an extremely broad discretion once an adequate inquiry has been conducted).

        Poole, supra; Gibson v. State, 267 Ga. App. 473, 478 (4) (600 SE2d 417) (2004).

       See generally Poole, supra; Somchith v. State, 272 Ga. 261, 262-263 (2) (527 SE2d 546) (2000) (recognizing that before a juror is excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside, and holding that the trial court did not abuse its discretion in refusing to excuse jurors for cause: where one juror knew the sheriff’s deputies, including at least one deputy who would be a witness, and expressed a belief in the credibility of the witness, but stated he could set aside his personal relationships and decide the case based on the evidence and instructions; where one juror knew the district attorney because of prior prosecutions of cases, but juror stated he did not believe the relationship would influence his deliberations; and where one juror stated that she believed that a killing should only be in self-defense, when the defendant was claiming he committed voluntary manslaughter, but said she could set aside her own opinions and decide the case based on the court’s instructions); Holmes v. State, 269 Ga. 124, 125 (2) (498 SE2d 732) (1998) (trial court did not abuse its discretion by refusing to excuse a juror for cause who stated that she would “try” to put aside her emotions and consider the case based upon the evidence); Johnson v. State, 262 Ga. 652,653 (2) (424 SE2d 271) (1993) (before a juror can be disqualified for cause, it must be shown that he holds an opinion so fixed and definite that he will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence; thus, where a juror expressed some reservations concerning his ability to set aside his personal experiences, the trial court did not abuse its discretion by refusing to excuse the juror for cause). Compare Mincey v. State, 251 Ga. 255, 264 (9) (304 SE2d 882) (1983) (court did not err in excusing juror for cause where she revealed that she knew the defendant’s family, could not decide the case based upon the evidence and the law, and could under no circumstances return a verdict of guilty).

       See generally Robinson v. State, 180 Ga. App. 248, 249 (2) (348 SE2d 761) (1986).

        Kim, supra at 179.

       See id.

        See Lively, supra at 512 (2); see generally Ivey v. State, 258 Ga. App. 587, 588-594 (2) (574 SE2d 663) (2002) (reversing conviction where trial court abused its discretion by refusing to excuse a juror for cause, after judge improperly used a rehabilitation question to justify retaining the biased juror).

       Supra.

       See Lively, supra at 512 (3).

       See Nangreave, supra.

       See id.; Bush, supra; Adcock, supra.

        Barnett v. State, 204 Ga. App. 491, 495 (2) (b) (420 SE2d 43) (1992); see Ellis v. State, 316 Ga. App. 352, 359 (3), n. 4 (729 SE2d 492) (2012) (“an appealing party may not use its brief to expand its enumeration of errors by arguing the incorrectness of a trial court ruling not mentioned in the enumeration of the errors”).

       See generally Handley v. State, 289 Ga. 786, 787 (1) (716 SE2d 176) (2011).


author: Branch, Judge.

text:
    A12A2173.
    JONES v. THE STATE.
    (739 SE2d 43)
   Branch, Judge.

On appeal from his conviction for aggravated assault, criminal damage to property, and other crimes, Christopher Jones argues that the evidence was insufficient as to the charge of criminal damage to property and that the trial court erred when it denied his motion for mistrial concerning the State’s failure to provide him with exculpatory evidence. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that on the early afternoon of February 4, 2006, the victim was babysitting a friend’s child when Jones, who was the victim’s boyfriend at the time, became angry and hit her, first with his fists and then with a handgun. Later that evening, Jones returned to the victim’s house and was talking to her when two other friends of the victim knocked on her door. Jones, who was wearing a dark shirt, fled through the back door. Moments later, the victim and her friends, who had entered the house, heard gunshots outside. The male friend looked out the window and saw a figure in a dark shirt firing a handgun at his car. Thirteen nine- millimeter casings were recovered at the scene. Jones was charged with aggravated assault, battery, criminal damage to property in the second degree, and possession of a firearm during the commission of a crime.

Before trial, the victim notified the prosecutor that she wanted to drop the charges against Jones and drafted a dismissal of warrant to that effect. The prosecutor sent Jones an e-mail telling him of the victim’s “hesitance to prosecute.” At trial, and after asking whether the victim “want[ed] to be here today,” Jones’s attorney raised the subject of the victim’s attempt to dismiss the charges. At the conclusion of the victim’s testimony, Jones moved for a mistrial on the ground that he should have been provided with the victim’s draft dismissal before trial. After confirming for the record that Jones’s attorney had already elicited testimony from the victim about the attempted dismissal, and after allowing Jones to see a copy of the draft dismissal, the trial court denied the motion.

The owner of the car testified that the bullets caused at least $4,000 in damage. At the conclusion of the State’s case, Jones moved for a directed verdict on the criminal damage to property count for lack of evidence that he had been identified as the person who shot at the car. The trial court denied the motion. After a jury found Jones guilty on all counts, he was convicted and sentenced to seventeen years with seven to serve.

1. Jones argues that the evidence is not sufficient to sustain his conviction for second-degree criminal damage to property. We disagree.

This victim testified that Jones was wearing a dark shirt when he fled through the back door after hearing the knock of the victim’s friends, and the male friend testified that moments later, he saw a man in a dark shirt shooting at his car parked outside the victim’s house. This evidence that Jones is the person who shot at the male friend’s car was circumstantial, but it does not necessarily follow that it was insufficient to sustain Jones’s conviction. As we commented in another case involving a shooting that caused damage to a car:

[I]n an entirely circumstantial case, the question whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law. The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind. Moreover, in every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury.

Giles v. State, 211 Ga. App. 594, 595 (1) (440 SE2d 48) (1993), quoting Adams v. State, 187 Ga. App. 340, 344 (1) (370 SE2d 197) (1988).

Under these facts, including the evidence outlined above, the question whether circumstantial evidence as to the shooter’s identity excluded every reasonable hypothesis other than Jones’s guilt was for the jury. As the guilty verdict is supportable as a matter of law, we will not substitute our judgment for the jury’s as to it. Giles, 211 Ga. App. at 595-596 (1) (evidence that defendant had been in restaurant and was seen in parking lot, that gunshots were fired, that victim’s car was damaged, and that defendant later offered to pay for damage, was sufficient to sustain conviction for second-degree criminal damage to property even when lab tests could not establish that bullets damaging the car came from defendant’s gun); OCGA § 16-7-23 (a) (1) (defining second-degree criminal damage to property as intentionally causing damage in excess of $500); Jackson, supra.

Decided February 27, 2013.

Robert L. Persse, Stuart H. Patray, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

2. Jones also argues that the trial court violated Brady v. Maryland, 373 U. S. 83, 87 (83 SC 1194, 10 LE2d 215) (1963), when it denied his motion for a mistrial based on the State’s failure to provide him with the victim’s draft dismissal of the warrants against him before trial. We disagree.

The record shows that Jones’s attorney introduced the subject of the victim’s efforts to drop the case against him in the course of his cross-examination of her. The record also shows that Jones objected to the State’s failure to produce the draft dismissal not on Brady grounds, but under the Georgia Criminal Discovery Procedure Act, OCGA § 17-6-1 et seq.

Because Jones failed to raise his Brady objection at trial, he has waived it on appeal. Jones v. State, 258 Ga. 249, 250 (6) (368 SE2d 313) (1988). Even if he had preserved the issue, moreover, and although the document itself is not in the record, Jones’s attorney introduced the subject of a dismissal, and the victim confirmed that she had gone to the district attorney in an attempt to drop the case. Only after these events did Jones insist that the draft dismissal itself be produced. Under these circumstances, when Jones cross-examined the victim concerning her attempt to drop the charges against him and was provided with the draft dismissal at trial, there was no Brady violation. “Brady is not violated when the Brady material is available to defendants during trial.” (Citation and punctuation omitted.) Floyd v. State, 263 Ga. App. 42, 43 (587 SE2d 203) (2003). It follows that the trial court did not abuse its discretion when it denied Jones’s motion for mistrial.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


author: Ray, Judge.

text:
    A12A2209.
    HAMLIN v. THE STATE.
    (739 SE2d 46)
   Ray, Judge.

A jury convicted Brandon Hamlin of one count of armed robbery and one count of aggravated assault. He appeals from the denial of his amended motion for new trial, contending that there was insufficient evidence to sustain his convictions, that he received ineffective assistance of counsel, and that the trial court erred in its admission of certain evidence. For the reasons that follow, we affirm.

1. Hamlin argues that the evidence was insufficient to support his convictions because no fingerprint evidence linked him to the crimes. He also argues that because one of the eyewitnesses who identified him as the perpetrator was in medical distress, the identification was unreliable. These contentions are without merit.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this [Cjourt, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.

So viewed, the evidence shows that on April 1,2010, Brad Rogers was employed at a store specializing in vitamins and nutritional supplements. The lone customer in the store was Hamlin. At Hamlin’s request, Rogers reached onto a high shelf to retrieve a product. When Rogers turned back toward the cash register, he felt a knife pressed up against his side. Hamlin pushed Rogers against the wall and said, “[T]his is a robbery, I want all your money.” Rogers opened the cash register and gave Hamlin about $180, primarily in $1 and $5 bills. Hamlin then left through the store’s back door. An employee of a nearby beauty supply store, who was in the back alley, saw Hamlin running away. Rogers came out the door after him and told her, “I just got robbed, I just got robbed.” The police arrived quickly and called an ambulance, because they thought Rogers might be having a heart attack. His blood pressure was high, but he did not have a heart attack; the ambulance left while he remained at the store. The beauty store clerk described Hamlin to police as a light-complexioned, heavyset black man about five feet ten inches tall, wearing sunglasses, a black wool cap, and all-black clothing. A police officer patrolling the area received a radio dispatch with this description. While driving on a road behind the vitamin store, the officer saw Hamlin, whose appearance matched the description, coming out of the woods. The officer stopped to talk with Hamlin, but Hamlin “bolted. He took off just as fast as he could run.” The officer arrested him and retrieved the following from Hamlin’s person: a folding pocketknife, a knit hat with eyeholes cut out, $180 in primarily $1 and $5 bills, a pair of gloves, sunglasses, a note that said “money now,” and a bottle of pills bearing the vitamin store’s logo. The officer drove Hamlin back to the vitamin store, where both Rogers and the beauty store employee identified him.

Hamlin contends that the evidence was insufficient to convict him because his fingerprints were not found at the scene and because the eyewitness identifications were not reliable. We disagree. Even absent fingerprint evidence, the jury’s verdict is supported by other evidence, including the eyewitness identifications, the bottle bearing the store’s logo, and the cash in the amount and denominations reported stolen. Further, it is well settled that “the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” The testimony of a single witness is generally sufficient to establish a fact. Here, two eyewitnesses identified Hamlin as the perpetrator. The evidence was sufficient to sustain the jury’s conviction and to exclude every other reasonable hypothesis save for Hamlin’s guilt.

2. Hamlin next asserts that his trial counsel was ineffective. To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. “The likelihood of a different result must be substantial, not just conceivable.” We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Further, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Hamlin asserts that his trial counsel was deficient in failing to highlight the fact that Rogers’ testimony at trial was that he did not see a knife, in contrast to Rogers’ earlier, contradictory statement to police that the knife was five or six inches long with a dark handle. The police found a silver, folding pocket knife on Hamlin’s person when he was arrested.

At the motion for new trial hearing, Hamlin’s trial counsel testified that he made a strategic decision not to point out any conflicting information about the knife for the jury. He testified that he wanted jurors to focus on Rogers’ testimony that he did not see the knife, in hopes that they would not convict Hamlin of armed robbery with a knife.

Decisions regarding the scope of cross-examination, impeachment, and presentation of testimony are matters of trial strategy and will rarely constitute ineffective assistance. “This Court will not, with benefit of hindsight, second-guess defense trial strategies .... Absent a strong showing that counsel’s actions were not reasonable, we will presume that these strategies were not deficient.” In light of trial counsel’s testimony, Hamlin has failed to show that the decision not to highlight the discrepancies in Rogers’ testimony was unreasonable and amounted to deficient performance.

(b) Hamlin argues that his trial counsel was ineffective because he failed to elicit testimony from Hamlin’s father that he had given Hamlin $140 earlier on the day of the robbery. Hamlin contends that “had the jury known that Defendant already had $140 on his person, the fact that Defendant was found with $180 in his pocket would not have been so damaging.”

Hamlin’s father testified at the motion for new trial hearing that he told trial counsel he had given Hamlin $140. However, at the same hearing, trial counsel testified that he spoke to Hamlin’s father one or more times prior to trial and that he did not recall ever being told that the father gave Hamlin $140. To the extent that their testimony differed, the trial court was entitled to believe the testimony of Hamlin’s trial counsel rather than that of Hamlin’s father. Having reviewed the record, we conclude that the trial court was authorized to rule that trial counsel was not ineffective.

3. Hamlin argues that the trial court erred in admitting certain physical evidence over his objections.

(a) Hamlin contends that the trial court erroneously admitted the gloves and the “money now” note found on his person, over his relevancy objections, because there was no testimony indicating that the perpetrator wore gloves or used a note in the robbery.

“Evidence is relevant if it tends to prove or to disprove a material fact at issue, and every act or circumstance which serves to explain or throw light upon a material issue is relevant.” Here, the officer testified that when he searched Hamlin, he found the gloves and the note on Hamlin’s person. A jury could infer that the gloves tend to prove why Hamlin’s fingerprints were not found at the scene and that the “money now” note tends to show Hamlin’s intent to demand money from the vitamin store employee, regardless of whether he used the note to do so. Even if the items did not reflect upon Hamlin’s guilt or innocence, “[i]t is well settled that all of the circumstances connected with an accused’s arrest, including any items taken from his person, are admissible as evidence at trial.”

(b) Hamlin also argues that the trial court erred in admitting into evidence a photograph showing him standing next to a police car after his arrest. Hamlin’s hands are not visible in the photograph, and he argues that this makes him appear to be handcuffed. Hamlin contends that any probative value the photograph has was outweighed by the photograph’s prejudicial effect.

“Whether to admit evidence is a matter resting in the trial court’s sound discretion, and evidence that is relevant and material to an issue in the case is not rendered inadmissible because it incidentally places the defendant’s character in issue.” We review any challenge to evidence on the basis that its probative value is outweighed by its tendency to prejudice the jury for an abuse of discretion. “Photographs which are relevant to any issue in the case are admissible even though they may have an effect upon the jury.”

Decided February 27, 2013.

Joseph C. T. Lewis, for appellant.

Here, the State showed Rogers the photograph so that he could testify as to whether the photograph “fairly and accurately show[ed Hamlin] as he appeared” on the date of the robbery. Prior to the admission of the photograph and without objection, Rogers testified that when he identified Hamlin as the man who robbed him, Hamlin was seated in the back of a police car.

Although this Court has found, in somewhat analogous situations, that booking photographs are admissible to show how a defendant appeared at the time of the crime, the probative value of these photographs generally stems from the fact that the defendant’s appearance has changed between the time of booking and the time of trial. In the instant case, counsel directs us to no testimony indicating that Hamlin’s appearance had changed. In general, however, we have found that “mug shots of a defendant taken after arrest with regard to the crime for which he is currently being prosecuted do not prejudice the defendant.”

At the time the photograph was admitted, the jury already knew that Hamlin had been arrested. Further, most jurors likely would assume that the police usually handcuff a person arrested for armed robbery. The jury also had heard, without objection, Rogers’ testimony that when he identified Hamlin as the person who robbed him, Hamlin was sitting in a police car. Given this testimony and the trial court’s proper charge to the jury on the presumption of innocence, we cannot say that Hamlin “has shown any likelihood that he was prejudiced by the [photograph], much less that the probative value of the [photograph] is ‘substantially’outweighed by the danger of unfair prejudice.” Thus, any error was harmless in light of the overwhelming evidence of Hamlin’s guilt.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

Gregory W Winters, District Attorney, Brian R. Granger, Assistant District Attorney, for appellee.

       OCGA § 16-8-41.

       OCGA § 16-5-21.

       (Footnote omitted.) Robinson v. State, 314 Ga. App. 545, 546 (724 SE2d 846) (2012).

        Taylor v. State, 318 Ga. App. 115, 116 (1) (733 SE2d 415) (2012).

       (Citation, punctuation and footnote omitted.) Frazier v. State, 305 Ga. App. 274, 275 (1) (699 SE2d 747) (2010).

       Id.

        Nangreave v. State, 318 Ga. App. 437, 439 (1) (734 SE2d 203) (2012).

        Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

        Strickland, supra at 697 (IV).

       (Citation and punctuation omitted.) Hill, supra at 164 (4).

       See Daniels v. State, 296 Ga. App. 795, 802 (5) (g) (676 SE2d 13) (2009) (scope of cross-examination is a matter of trial strategy); McMichael v. State, 305 Ga. App. 876, 878 (700 SE2d 879) (2010) (impeachment of witness is a matter of trial strategy); Hall v. Terrell, 285 Ga. 448, 455 (II) (E) (679 SE2d 17) (2009) (decision not to present testimony is a matter of trial strategy).

       (Citation and punctuation omitted.) Raymond v. State, 298 Ga. App. 549, 550-551 (1) (a) (680 SE2d 598) (2009).

        Palmer v. State, 286 Ga. App. 751, 758 (7) (a) (650 SE2d 255) (2007).

       (Citation omitted.) Scales v. State, 310 Ga. App. 48, 51 (2) (a) (i) (712 SE2d 555) (2011).

       (Citations omitted.) Reese v. State, 145 Ga. App. 453, 457 (4) (243 SE2d 650) (1978). See also Davis v. State, 196 Ga. App. 390, 390 (2) (396 SE2d 301) (1990).

       (Citation and punctuation omitted.) Alexis v. State, 313 Ga. App. 283, 286-287 (2) (721 SE2d 205) (2011).

       Id. at 287 (2).

       (Citations omitted.) Ramey v. State, 250 Ga. 455, 456 (1) (298 SE2d 503) (1983).

       See, e.g., Chaney v. State, 258 Ga. App. 551, 552-553 (4) (574 SE2d 634) (2002).

       (Citation omitted.) Sharpe v. State, 288 Ga. 565, 567 (4) (707 SE2d 338) (2011).

       See Solis-Morales v. State, 315 Ga. App. 724, 727, n. 8 (728 SE2d 253) (2012).

       (Citation omitted.) Id. at 726-727.