text:
    A11A0875, A11A0876.
    A11A0877.
    JACKSON v. THE STATE (two cases). PHILLIPS v. THE STATE.
    (714 SE2d 584)
   MCFADDEN, Judge.

A jury found brothers Silas Jackson and Michael Phillips guilty of two counts each of armed robbery, criminal attempt to commit armed robbery, aggravated assault, and possession of a firearm during the commission of a crime, and one count of theft by receiving stolen property. Based on a separate indictment, the jury also found Jackson guilty of two additional counts of aggravated assault.

Citing an error in the jury instructions, the trial court granted both defendants a new trial as to several charges. These appeals represent the defendants’ challenge to their convictions on the remaining charges. In Case Nos. A11A0875 and A11A0876, Jackson argues that the trial court erred in joining the two indictments for trial. He also asserts, without any supporting argument or authority, that the evidence against him was insufficient and that the trial court erred in admitting identification testimony. In Case No. A11A0877, Phillips claims, among other things, that the evidence was insufficient to sustain his convictions and that the tried court improperly restricted his use of a photograph at trial. He also argues that the State failed to produce a written witness statement in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

Because the trial court did not err in joining the two indictments for trial and Jackson has abandoned his other cleiims of error, we affirm Jackson’s convictions. As to Phillips, however, we find that the State committed a harmful Brady violation and that the trial court erred with respect to the photograph. Accordingly, although the evidence against him was sufficient, we reverse Phillips’s convictions and remand for a new trial. All other claims of error raised by Phillips are mooted by the grant of a new trial.

Viewed favorably to the jury’s verdicts, the evidence shows that around 2:00 a.m. on November 18, 2005, Robert Proctor arrived at his Albany home in a tan Lincoln Towncar. As Proctor walked toward his house, two masked men approached him. One of the men pointed a gun and ordered Proctor to empty his pockets. The men took Proctor’s money and car keys, then left in his Towncar.

At approximately 8:00 that evening, two gunmen wearing bandanas over their faces confronted Jermond Pollard and his mother-in-law in the driveway of Pollard’s home in Albany. Threatening to shoot, the men demanded money and took the mother-in-law’s purse. Pollard, who had no money with him, ran. In an alley behind his house, Pollard saw a tan Lincoln Towncar moving slowly. He knocked on the car window for help, then noticed that the driver was wearing a bandana like those of the gunmen, who arrived a few seconds later, got into the vehicle, and left. Although the robbers’ faces were partially covered, Pollard was “pretty positive” at trial that Jackson was one of the gunmen and Phillips was the driver of the Towncar.

A few minutes after the Pollard incident, and less than one-half mile away, Michael Flynn and his family drove up to their home. As the Flynns got out of the car, three armed men with bandanas over their faces ran up and demanded money. One man pointed a gun at Michael Flynn, who handed over his wallet. The men then fled. A few moments later, Flynn noticed a gold Lincoln Towncar speeding down the street with its lights off, and Flynn’s son saw the gunmen enter the car.

At a family gathering the following day, Jackson pointed a gun at his cousin and the cousin’s friend, then left the area. A family member called the police, who arrived within a few minutes. A short time later, Jackson reappeared and spoke with the officers. The cousin testified that before the assaults, he saw Jackson standing by the same type of tan Lincoln Towncar that was involved in the robberies the day before. An officer who responded to the scene also saw the Towncar drive by the gathering a few minutes before Jackson returned.

Several days later, this same officer spotted the Towncar parked approximately one mile from the house where Jackson and Phillips lived with other family members. The officer determined that the car was Robert Proctor’s stolen vehicle and reported the discovery, as well as the connection between Jackson and the Towncar. Based on information gathered from all of the incidents, the police obtained a search warrant for Phillips and Jackson’s residence. Inside the house, officers found four bandanas in a bathroom linen closet, bullets in the pocket of a jacket, and a car stereo in a backpack. Phillips, who was present during the search, told officers that the jacket containing the bullets and the backpack holding the stereo belonged to him. He also admitted that he had ridden inside the Lincoln Towncar and believed it was stolen. The police later identified the stereo as an item taken from Proctor’s car.

In Indictment No. 06R1231 (“the robbery indictment”), the State charged Phillips and Jackson with numerous crimes arising out of the Proctor, Pollard, and Flynn robberies. Jackson was charged separately in Indictment No. 06R1364 (“the assault indictment”) with the aggravated assault of his cousin and the cousin’s friend. Both indictments were tried together, and pursuant to the robbery indictment, the jury found the defendants guilty of armed robbery, criminal attempt to commit armed robbery, aggravated assault, and possession of a firearm during the commission of a crime in connection with the Pollard and Flynn incidents. Jurors also found both men guilty of theft by receiving stolen property. As to the Proctor incident, however, the jury concluded that Jackson and Phillips were not guilty of the crimes charged. Finally, the jury found Jackson guilty of the two aggravated assault charges in the assault indictment.

Following a motion for new trial, the trial court concluded that it had committed a charging error that impacted the jury’s verdicts regarding the Flynn incident. It granted a new trial as to those charges, leaving intact the verdicts as to the Pollard offenses, theft by receiving stolen property, and the aggravated assaults in the assault indictment.

Case No. A11A0875

1. Jackson challenges his convictions for the Pollard crimes and theft by receiving stolen property. He claims that these charges, which arose from the robbery indictment, should not have been tried with the two aggravated assault charges in the assault indictment. We disagree.

“A trial court has discretion to conduct a joint trial on two separate indictments where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” (Punctuation and footnotes omitted.) Thomas v. State, 254 Ga. App. 226, 229 (2) (561 SE2d 444) (2002). In resolving a joinder issue, the underlying consideration is “whether undue or great risk of prejudice from a joint disposition of charges would result.” (Punctuation and footnote omitted.) Id.

Although Jackson argues that the charges in the two indictments were unrelated, the trial court did not abuse its discretion in finding otherwise. The State offered evidence that on November 18, 2005, Jackson and Phillips took part in three armed robberies that all involved, in some way, guns and a tan or gold Lincoln Towncar. The following day, Jackson threatened two people with a gun at a party after he was seen standing by this same type of vehicle. We recognize that Phillips did not participate in the November 19 assaults, and those crimes involved threats at a family party, rather than robbery of strangers. Investigation of the assaults, however, helped police connect Jackson to the November 18 armed robberies, which in turn led to the search of his house, discovery of the stolen car stereo, and a further link to Phillips. Given these circumstances, the trial court was authorized to find that the events in the two indictments — committed within a two-day period and involving guns and a Lincoln Towncar — constituted a series of connected acts.

Moreover, the trial court properly found that joint disposition of the indictments was not prejudicial. Joinder causes no harm when evidence of one crime is admissible in the trial of another. See Mann v. State, 264 Ga. App. 631, 635 (5) (591 SE2d 495) (2003), overruled on other grounds by Kaiser v. State, 285 Ga. App. 63, 68 (1) (646 SE2d 84) (2007); Weaver v. State, 206 Ga. App. 560, 561 (1) (426 SE2d 41) (1992). Here, the connection between the robberies and the assaults committed the following day helped identify Jackson and Phillips as the robbers. Such identifying evidence certainly was relevant to the State’s case in the robbery indictment. See Buice v. State, 289 Ga. App. 415, 417 (2) (657 SE2d 326) (2008). And in prosecuting the assault indictment, the State could introduce evidence that a witness saw Jackson at the scene of the assaults next to a stolen car that had been used in several armed robberies. See Shields v. State, 203 Ga. App. 538, 539 (1) (417 SE2d 168) (1992) (State may inform jurors of all circumstances surrounding the commission of a crime, even if that information incidentally places a defendant’s character into issue).

Because evidence of the various, intertwined crimes would have been admissible against Jackson had the indictments been tried separately, joinder was not prejudicial or erroneous. See Mann, supra; Weaver, supra. Accordingly, the trial court properly consolidated the indictments for trial. See Thomas, supra.

2. Jackson asserts generally that the evidence did not support his convictions relating to the Pollard incident and theft by receiving stolen property. On appeal, however, his argument focuses solely on the joinder issue. Although he mentions the sufficiency of the evidence in that context, claiming that absent joinder, the State would not have been able to link him to the Lincoln Towncar and the robberies, joinder was appropriate here. This argument, therefore, lacks merit.

To the extent Jackson intended to question the sufficiency of the evidence on another basis, his claim of error has been abandoned. Pursuant to Court of Appeals Rule 25 (c) (2), “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.” Other than briefly challenging the evidence in the joinder context, Jackson has made no effort to support the sufficiency claim with argument or citation of authority. Accordingly, we will not address this claim further. See McClendon v. State, 264 Ga. App. 174, 177 (2) (590 SE2d 189) (2003); Griffin v. State, 237 Ga. App. 753, 753-754 (1) (516 SE2d 588) (1999); Court of Appeals Rule 25 (c) (2).

3. Jackson asserts that the trial court erred in admitting in-court identification testimony, but he has not supported this claim of error with argument or citation of authority in his brief. The claim is thus deemed abandoned. See Court of Appeals Rule 25 (c) (2).

Case No. A11A0876

4. In this appeal, Jackson challenges his aggravated assault convictions, again arguing that the trial court erred in joining his indictments for trial. As found in Division 1, joinder was appropriate. Accordingly, this enumeration of error lacks merit.

5. Similar to Case No. A11A0875, Jackson claims that the evidence did not support his aggravated assault convictions and that the trial court erroneously allowed in-court identification testimony. Jackson’s sufficiency argument, however, rests solely on his claim that the trial court erred in joining the two indictments. This argument lacks merit. He has offered no other argument or citation of authority supporting these allegations of error, and we will not review them further. See Court of Appeals Rule 25 (c) (2).

Case No. A11A0877

6. Phillips challenges the sufficiency of the evidence supporting his convictions for the attempted armed robbery of Jermond Pollard, the armed robbery of Pollard’s mother-in-law, the aggravated assault of Pollard, possession of a firearm during the commission of a crime in connection with the Pollard incident, and theft by receiving stolen property. When reviewing this challenge to the sufficiency of the evidence, we do not weigh the evidence or resolve issues of witness credibility. We merely determine whether the evidence, construed favorably to the verdicts, authorized the jury to find Phillips guilty beyond a reasonable doubt. See Buice, supra at 415 (1).

The evidence shows that two armed men threatened Pollard and his mother-in-law with guns, demanded money, and took the mother-in-law’s purse. Pollard identified Phillips as the driver of the stolen Lincoln Towncar used as a getaway vehicle, noting that he was wearing a bandana like those worn by the robbers. Phillips later admitted to police that he knew the Towncar had been stolen. Based on this evidence, which demonstrates Phillips’s participation in the Pollard incident and his possession of or control over the stolen vehicle, the jury was authorized to find Phillips guilty of the crimes charged. See Yancey v. State, 281 Ga. 664, 665 (1) (641 SE2d 524) (2007) (driver of getaway vehicle guilty of crimes connected with shooting even though he did not fire gun); OCGA § 16-2-20 (a) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”); Brown v. State, 289 Ga. App. 421, 423 (2) (657 SE2d 322) (2008) (jury authorized to find driver of stolen car guilty of theft by receiving).

7. Although the evidence supports the jury’s verdicts, we agree with Phillips that the State’s Brady violation requires reversal. Without dispute, the State failed to turn over to the defense a written statement that Jermond Pollard gave to police. In the statement, Pollard asserted that he and his mother-in-law were robbed by two armed men. He did not mention a third participant in a getaway car. Pollard testified at trial, however, that not only was a third man involved, but Phillips was this third individual. In his motion for new trial, Phillips argued that the State’s failure to disclose Pollard’s written statement deprived him of the opportunity to impeach Pollard with the statement’s omission. The trial court denied Phillips’s motion.

To prevail on a Brady claim, a defendant must demonstrate that (1) the State possessed evidence favorable to the defendant; (2) the defendant did not possess the evidence and could not obtain it with any reasonable diligence; (3) the prosecution suppressed the evidence; and (4) “had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.” Blackshear v. State, 285 Ga. 619, 622 (5) (680 SE2d 850) (2009). The Brady disclosure requirements extend to impeachment evidence, and such evidence is generally material where the witness at issue “supplied the only evidence linking [the] defendant to the crime.” (Punctuation omitted.) Walker v. Johnson, 282 Ga. 168, 170 (2) (646 SE2d 44) (2007).

The record shows that the police possessed Pollard’s pretrial statement, which was not disclosed to Phillips in discovery before or during trial. Moreover, on the day of trial, defense counsel specifically asked whether the State had any statements given by Pollard, and the prosecutor responded that it did not. The State does not dispute that, based on this evidence, Phillips meets the first three Blackshear requirements. Instead it argues — and the trial court found — that Phillips cannot satisfy the fourth requirement.

Addressing this requirement, the trial court noted that Pollard’s description of events was memorialized not only in his written statement, but in police reports prepared by two different officers who responded to the robbery scene. The first report, written by Officer Herbert Denton, closely tracks Pollard’s written statement and, like the statement, does not mention a third participant in the robbery. The report from the second officer, Janeen Lavoie, is more detailed. According to Lavoie’s report, Pollard indicated that three men were involved, including the driver of the getaway car. Focusing on the police reports, the trial court determined that the defense knew the substance of Pollard’s written statement before trial and could have cross-examined Pollard about any omissions. It thus found no likelihood that disclosure of the written statement would have altered the trial outcome.

The trial court clearly based its conclusion on the contents of both police reports. At the hearing on Phillips’s motion for new trial, however, defense counsel testified that he only received a copy of Lavoie’s report, which mentioned three participants. He denied receiving Denton’s report, and the State did not contest this point, assert that Denton’s report was provided in discovery, or submit evidence of such disclosure. The record thus demonstrates that the defense had access to a police report mentioning three participants, but did not receive the report referencing only two perpetrators. Pollard’s impeachable omission, therefore, was not known to the defense before or during trial.

Pollard was the only witness who identified Phillips as a participant in this particular robbery and the driver of the Towncar. Although other evidence helped link Phillips to the crime spree, such evidence was not overwhelming or directly related to the Pollard incident, and the jury acquitted Phillips of participation in the first robbery involving Robert Proctor. Given these circumstances, as well as the impeachment value of Pollard’s written statement, we agree with Phillips that the statement was material to the defense and, had it been disclosed, the outcome of this case might have been different. See Walker, supra at 170-172; see also Pye v. State, 269 Ga. 779, 786-787 (14) (505 SE2d 4) (1998) (witness may be impeached through misstatements or omissions in pretrial statement). Accordingly, the trial court erred in denying Phillips’s motion for new trial based on the Brady violation. See Gonnella v. State, 286 Ga. 211, 215-216 (2) (686 SE2d 644) (2009); Walker, supra.

8. Because the issue may arise on retrial, we will address Phillips’s claim that the trial court improperly restricted his use of a photograph at trial. Phillips sought to present evidence that his hairstyle in November 2005 did not match the low cut hairstyle purportedly worn by the robbers. Specifically, he wanted to ask witnesses whether his November 2005 hairstyle resembled that depicted in a June 2005 mug shot, which showed him with a “twist dreadlock” style. The trial court ruled that the defense could only tender the photograph if it laid a foundation by establishing who took the picture, where it was taken, and why it was taken. Not wanting to inform the jury that Phillips had been arrested in June 2005 for a crime unrelated to the robberies, the defense did not tender the photograph.

On appeal, Phillips argues that the trial court erred in insisting that the defense establish the circumstances surrounding the mug shot before asking witnesses whether it accurately depicted his hairstyle at the time of the robberies. We agree. A party lays a foundation for a photograph by showing that it fairly and accurately represents the object, scene, or person depicted. See Davis v. State, 253 Ga. App. 803, 806 (6) (560 SE2d 711) (2002); Jones v. State, 161 Ga. App. 218 (1) (288 SE2d 293) (1982). “[A]ny witness familiar with the subject depicted can authenticate a photograph; the witness need not be the photographer nor have been present when the photograph was taken.” (Footnote omitted.) Davis, supra.

Phillips was not required to identify when, where, and why the photograph was taken to establish a foundation. He only needed to establish that it accurately depicted him. Davis, surpa. The trial court erred in ruling otherwise.

Decided June 6, 2011.

Phillips & Nemajovsky, Mark T. Phillips, for appellant (case nos. A11A0875 and A11A0876).

Kevin Armstrong, for appellant (case no. A11A0877).

Gregory W. Edwards, District Attorney, Matthew Breedon, Assistant District Attorney, for appellee.

9. Given our decision in Division 7, Phillips’s remaining claims of error are moot.

Judgment affirmed in Case Nos. A11A0875 and A11A0876. Judgment reversed and case remanded in Case No. A11A0877.

Phipps, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A0343.
    KEATING v. THE STATE.
    (711 SE2d 327)
   Adams, Judge.

Convicted of conspiracy to commit armed robbery, Maya Keat-ing, age fourteen at the time of the incident during which one man was shot and killed, contends that three errors occurred at her trial requiring reversal. We disagree and affirm.

Five other individuals were involved in the crimes; Christina Pascarella’s conviction has already been affirmed by this Court. An overview of the facts, supplemented here by the transcript, is found in that- opinion:

Viewed in the light most favorable to the conviction, the evidence showed that on April 21, 2006, [Christina] Pas-carella [and Maya Keating] accompanied several other persons to a restaurant in a car. [Pascarella] and [Keating] entered the restaurant and purchased drinks. They then returned to the car and reported to their companions the number of people inside the restaurant. While Pascarella [and Keating] remained outside, two of [their] companions [Robert “Rocky” Watkins and Colton “C. O.” Williams (“Colton”)] entered the back of the restaurant, brandished firearms, and demanded money. Two people inside the restaurant were shot, one of whom died.

Pascarella v. State, 294 Ga. App. 414 (669 SE2d 216) (2008). Watkins was convicted of murder for being the shooter. Like Pascarella, Keating was indicted on seven charges, including three counts of murder, conspiracy to commit armed robbery, two counts of aggravated assault, and possession of a firearm during the commission of a crime. Like Pascarella, she was acquitted of all charges except the conspiracy charge; she was sentenced to ten years.

1. Keating contends the trial court erred by denying her motion in limine seeking to exclude statements made by her co-conspirator Pascarella. She contends Pascarella’s statements are inadmissible hearsay, that any conspiracy had ended by the time the statements were made, and that, therefore, the statements were not admissible under OCGA § 24-3-5.

“Hearsay statements made by a conspirator during the course of a conspiracy, including the concealment phase, are admissible against all conspirators.” (Citation and punctuation omitted.) Brooks v. State, 281 Ga. 14, 16 (2) (635 SE2d 723) (2006). See also OCGA § 24-3-5. The key question is whether the conspiracy was still in the concealment phase given that at the time of the statements, Pascarella had not been arrested but the others had, and several had given statements. Brooks explains some aspects of the rule:

Merely because the defendants were talking about the crimes to third parties does not evidence the end of the concealment of the conspiracy. Moreover, a conspiracy or the concealment phase of it does not end just because one or more participants have been arrested and jailed.

Id. The Supreme Court has held that where one co-defendant has terminated his participation in the conspiracy but two others have not, statements made by one of the other two are still admissible against the third under this rule. Bundrage v. State, 265 Ga. 813 (2) (462 SE2d 719) (1995). In Bundrage, one of three co-defendants may have terminated his participation in the conspiracy by giving the police a statement or assisting the police by calling the second defendant. Id. Even so, the second defendant’s statements made during that call implicating the third defendant were admissible as being part of the conspiracy because the second defendant was still conspiring to conceal the crime. Id. at 814 (2).

Here the facts show that a conspiracy to engage in criminal activity existed between the six youths and that, at the time Pascarella made her statements to her friends Brianna Williams (“Brianna”) and Heather Martin, she had not confessed to the police or been arrested. Furthermore, she told her friends different versions of why she went into the restaurant, thereby concealing her own role. And at the same time, she was receiving messages from Watkins in jail asking her to alter aspects of the story to minimize his role in the incident in exchange for him keeping her role to a minimum, even though she apparently refused to agree to do so. The conspiracy did not end “when some of the conspirators were arrested and made inculpatory statements, because the conspiracy to conceal the identity of the remaining perpetrators was ongoing.” Ottis v. State, 269 Ga. 151, 155 (3) (496 SE2d 264) (1998). And as late as June 2006, over a month after Pascarella made her statements, Watkins was still sending her messages in which he instructed her and Keating to “just play stupid and act like you don’t know shit.” The trial court therefore did not abuse its discretion by allowing the statements made by Pascarella into evidence against Keating. See English v. State, 288 Ga. App. 436, 441 (2) (654 SE2d 150) (2007) (abuse of discretion). -

2. Keating contends the trial court improperly restricted questioning during voir dire related to the possible racial bias, prejudice, or leaning of prospective jurors. Most of the defendants were black and the victims were of Asian and Latino descent. We review this enumeration for abuse of discretion. Curry v. State, 255 Ga. 215, 218 (2) (b) (336 SE2d 762) (1985).

Georgia law provides that counsel have the right to examine jurors regarding anything that would show interest by a juror in the case:

In. the examination, the counsel for either party shall have the right to inquire of the individual jurors examined touching any matter or thing which would illustrate any interest of the juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the juror with the parties or counsel therefor, any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action or the counsel or parties thereto, and the religious, social, and fraternal connections of the juror.

(Emphasis supplied.) OCGA § 15-12-133. Thus the defendant in a criminal case “has an absolute right to have his prospective jurors questioned as to those matters specified in OCGA § 15-12-133, . . . [which] encompasses questions regarding possible racial prejudice and bias.” (Citations and punctuation omitted.) Legare v. State, 256 Ga. 302, 303-304 (1) (348 SE2d 881) (1986). Nevertheless, the court has discretion over the scope of permissible questions and how the voir dire is conducted. Ramirez v. State, 279 Ga. 569, 573 (4) (619 SE2d 668) (2005). See also Robles v. State, 277 Ga. 415, 419 (3) (589 SE2d 566) (2003).

Here, the court did not allow defense counsel to question the jurors regarding possible racial prejudice and bias after their first attempt to do so; it essentially only allowed one general question on the topic, and the court itself asked most of the jurors that one question. The voir dire unfolded as follows: The defense attorneys for the several defendants elected one attorney to ask the general questions to each of four panels of prospective jurors. During voir dire of the first panel, defense counsel asked, “Do any of you feel that minorities are not treated fairly in the judicial system?” The State objected, and the court sustained the objection. Defense counsel then asked without objection, “Do any of you feel as though you might have any biases or prejudices at all towards minorities?” Defense counsel received another objection to the next question: “Do any of you feel that young black men are more prone to —.” The court stated, “That’s clearly an objectionable question. You are not going there.”

After the first panel was excused, defense counsel argued that the court improperly limited the questioning. The court explained that defense counsel could ask whether the jurors had any biases or prejudices concerning race or against the defendants concerning race, but that was as far as they could go. Defense counsel also proposed asking, “Would you believe a white police officer over a black defendant,” and the court refused to allow that question. The court stated that counsel could submit “deeper questions” for review before asking them of the jurors. The defendants prepared a list, but the court did not allow the defense to ask any of the questions. Instead, during voir dire of the remaining panels, the court intervened in the questioning and asked this one question or its equivalent: “Do any of you jurors have any bias or prejudice, based on the age, race, religion, national origin of the accused?” The defense attorneys were allowed to ask follow up questions of anyone who gave a positive response to the court’s questions, which one juror did. The question raised is whether the trial court erred by taking over and asking only the single question, thereby preventing defense counsel from posing questions, included those submitted in writing.

Pretermitting whether the court erred, there is no reversible error if the State can carry its burden to show “that it is highly probable that the error did not contribute to the judgment.” Meeks v. State, 269 Ga. App. 836, 841 (1) (605 SE2d 428) (2004) (abuse of the court’s discretion regarding scope of voir dire not reversible error where no harm shown). See also Henderson v. State, 251 Ga. 398, 403 (2) (306 SE2d 645) (1983) (burden). To satisfy this standard, the State contends there is overwhelming evidence of Keating’s guilt. See Meeks, 269 Ga. App. at 841 (1). We agree that the State has shown that it is highly probable that the error did not contribute to the judgment for several reasons.

Keating was convicted of conspiracy to commit armed robbery; she was acquitted on the counts of murder, aggravated assault, and possession of a weapon during the commission of a crime. The jury also acquitted Colton of the murder counts, despite his having been in the restaurant carrying a gun when the victim was killed. Thus, first and foremost, the jury’s verdict indicates that they carefully considered the evidence against Keatipg and the other defendants count by count.

Second, the trial court did ask the jurors one appropriate question about their possible racial prejudice or bias. The question had some effect as one juror raised his hand, thereby exposing himself to follow up questions on that topic. Third, as shown at the hearing on the motion for new trial, three of the twelve jurors were African-American, and one of them was elected to be the foreperson.

Fourth, with one exception, the evidence supporting Keating’s conviction was overwhelming. The evidence presented at trial is virtually undisputed that on Friday April 21, 2006, Keating, Watkins, Colton, Marcus Brown, Coleman, and Pascarella, riding together in one car late in the evening, first went to an apartment complex across the street from the restaurant and bought some illegal drugs. The six young people next drove to the China Wok restaurant and parked. There were two guns in the car; Watkins said they were in plain view, and Brown said he could see one of them under the front passenger seat from his position in the back seat. In his statement to the police, Watkins said he needed money. Watkins asked Pascarella to go inside and count how many people were there, and Keating agreed to go with her and get a drink. One of the restaurant’s employees corroborated that two teenage girls came into the restaurant right before closing to buy just one drink. Pascarella and Keating were the only two girls in the car. The girls were not in the store very long, and they were the last customers that evening. The same witness testified that only a few minutes later, the gunshots began.

The girls came back out, reported how many people were in the restaurant, and waited in the car along with Brown and Coleman, while Watkins and Colton got out of the car and covered their faces; in Colton’s case, he used a shirt that Brown had been wearing. Brown saw that Watkins had a gun before the two went into the restaurant. After they went in, those in the car heard two gunshots. Watkins and Colton came out, jumped in the car, and screamed to go. A security camera showed two men running into and out of the restaurant at that time. Watkins told the others that he thought he had killed someone, and he threatened to kill anyone and their family if anyone told what had happened.

The group then went to Keating’s mother’s apartment where Keating’s bedroom was located; all six of them were there at 12:30 a.m. or 1:00 a.m., only an hour or two after the shooting, when Brianna arrived to see Keating and Watkins, who had invited her over earlier in the day. According to Brianna, all six were acting unusually quiet. Keating was also seen in her own bedroom on Sunday, two days later.

The police arrived at Keating’s mother’s apartment at 4:00 a.m. Monday and arrested Watkins, Keating, and Heather Martin, who was spending the night there. The officers searched the apartment at that time. The nine-millimeter gun that was used to kill the victim was found under Keating’s mattress. In her room in a suitcase in the closet, officers found a sawed-off shotgun, several types of ammunition and four cell phones. On the top of the dresser, they found two black gloves, one of which contained a small .25 caliber semiautomatic pistol. Also on top of the dresser they found a loaded magazine for a semiautomatic rifle. In the top drawer of the dresser they found a holster and three knit hats. The nine-millimeter gun had been openly visible on the bed at one point on Sunday when Brianna was there visiting Keating. Thus, during the entire weekend, Keating knew of the use of guns during the incident Friday night, yet guns and ammunition, including the murder weapon, were in her bedroom, including ammunition in plain sight.

The only real conflict in the above-stated evidence regarding Keating’s role was whether she knew going in that she and Pas-carella were on a mission to count the number of people inside. Both Martin and Brianna testified that Pascarella told them that Watkins asked her to go in and count heads and that Keating agreed to go with her and buy a drink. But Brianna also testified that Pascarella initially said that the two girls just went in to get a drink, suggesting that they did not know of a plan to rob the restaurant. But Brianna testified that Pascarella revised her story to include the counting-heads version.

“A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” OCGA § 16-4-8. A conspiracy may be established “by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose.” (Citations and punctuation omitted.) Brooks, 281 Ga. at 15 (2). Thus, the State need only show that “two or more persons tacitly came to a mutual understanding to accomplish or to pursue a criminal objective.” (Footnote omitted.) Williamson v. State, 300 Ga. App. 538, 547 (5) (685 SE2d 784) (2009). And “[a]lthough mere presence at the scene of a crime is insufficient to convict a defendant of being a party to the crime, ‘presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ [Cit.]” Ford v. State, 280 Ga. App. 580, 581 (634 SE2d 522) (2006).

Keating accompanied Pascarella into the restaurant to count heads, returned to the car, waited as Watkins and Colton masked themselves and went in, heard the shots, and did not leave or flee while Watkins and Colton were inside. Then, with knowledge that two companions had entered the restaurant, discharged weapons, and possibly killed someone, she allowed the entire party to come to her home and store the guns in her bedroom. For two days, she continued to conceal her participation in the crimes as well as the participation of others even though her mother was nearby. Thus the jury was well authorized to conclude that Keating was a part of the conspiracy to commit armed robbery.

Given that the jurors were at least asked one question about racial prejudice and bias, that the jury was one-quarter African-American, that the jury appears to have carefully considered the case count-by-count and defendant-by-defendant, and that the evidence strongly shows that Keating was a full participant in the conspiracy to rob the China Wok, we conclude that the State has carried its burden of showing that it is highly probable that any failure to allow the defendants to ask additional questions regarding possible racial prejudice or bias did not contribute to the judgment against Keating.

3. Keating also contends the trial court erred by refusing to transfer her case to juvenile court for sentencing and by allowing her to be sentenced as an adult. Keating’s argument is based on Keating having been a child 13 to 17 years of age at the time of her crime. See OCGA § 15-11-28 (b) (2) (D). But this enumeration of error is controlled adversely to Keating by Pascarella’s appeal on the same grounds; she was age 15 at the time of the crime and convicted on the same count as Keating. See Pascarella, 294 Ga. App. at 415-417 (1), (2).

Decided May 17, 2011

Reconsideration denied June 7, 2011.

Mitchell D. Durham, for appellant.

Patrick H. Head, District Attorney, Anna G. Cross, Amelia G. Pray, Jesse D. Evans, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Blackwell, J., concur.

       See also Allen v. State, 288 Ga. 263, 267 (4) (702 SE2d 869) (2010) (such statements do not violate the Confrontation Clause under Crawford v. Washington, 541 U. S. 36 (124 SC 1354, 158 LE2d 177) (2004), because they are not testimonial).

       Defense counsel submitted the following list of questions:
      1. What civic organizations are you a member of? How many black members do you have[?]
      2. How many black members of your church!?]
      3. How many black people live in your neighborhood!?]
      4. Have you, any member of your family, or anyone you know ever had any disagreements, arguments or confrontations with a black person!?]
      5. How do you feel about racial slurs!?]
      6. Would you be more likely to convict because a person is black!?]
      7. Would you presume or [be] more likely to presume a person guilty because of race!?]
      8. Are young black men more prone to commit crimes than young white men!?]

       Coleman was tried separately.


text:
    A11A0659.
    CITY OF ATLANTA et al. v. HOLDER.
    (711 SE2d 332)
   Adams, Judge.

In a case that is procedurally complex, the key factual issue is whether appellee Richard Holder may be attempting to recover a duplicate workers’ compensation award for the same injury. But the primary issue on appeal is whether the City of Atlanta is procedurally barred from contesting the second award. This is the third time the case has appeared in this Court. See Holder v. City of Atlanta, 294 Ga. App. 568 (669 SE2d 504) (2008).

Holder, an Atlanta police officer, has had numerous injuries in the line of duty over more than twenty-four years of service resulting from at least six car accidents, lifting injuries, and other incidents. Of particular interest is that on January 16,1993, he was hit in the head by a flagbearer during a parade causing him to fall, injuring his head, neck, back and left hand. Over the years, Holder filed separate workers’ compensation claims for these various injuries.

On November 14, 2006, apparently as a result of a comprehensive negotiation regarding his benefits pursuant to OCGA § 34-9-15, Holder signed a “Stipulation and Agreement” with the City and Novapro Risk Solutions, LP (the servicing agent) regarding accidents and injuries occurring on 15 separate dates spanning 24 years, including January 6, 1993, but not January 16, 1993 — the date of the flagpole related injury. The body of the agreement is seven pages long and includes four separate recitations of the fifteen dates, as well as handwritten entries, including that the City agreed to pay $72,000 ($57,835 for his injuries and $14,165 for attorney fees). The agreement states that “[i]t is the desire and intention of the parties hereto to forever and irrevocably settle any and all claims and disputes arising out of the accident and injury on or about [the 15 dates]” and that “the employee/claimant agrees that there has been no other accident except that stated above.” (Emphasis supplied.) See also OCGA § 34-9-1 (4) (defining “injury” to mean “only injury by accident”). The agreement was filed on December 13, 2006 with the State Board of Workers’ Compensation. The Board approved the agreement on January 23, 2007, and the City paid Holder and his attorney on January 30, 2007.

There exists, however, a second “Stipulation and Agreement” for which pages two through seven are identical to the first agreement, including the December 13, 2006 file stamp on every page, the body that recites the same fifteen injury dates four times, Holder’s signature, the same date of the signature, and the identical handwritten numerical entries of the amounts to be paid. Page one is also identical except that it does not reference the fifteen injury dates. Rather, in handwriting where the typewritten dates had been, the date of injury is shown as “1/16/93.” This agreement is also stamped “approved” by the Board, but with an approval date of January 25, 2007. Holder asserts that he did not submit this version of the agreement to the Board, rather, the City simply issued it. He was, however, willing to “ accept [ ] the agreement approved by the [Board] as payment for the January 16, 1993 injury. ...” He contends the second agreement represents the City’s decision to pay him for an injury not included in the first agreement, and he has pursued getting the City to pay him ever since.

On February 14, 2007, purportedly pursuant to OCGA § 34-9-105 (b), the City and Novapro appealed the January 25, 2007 award to the superior court, asserting, among other things, that the award was procured by mistake or fraud. The superior court held a hearing on May 25, 2007 but failed to issue an order within 20 days of the hearing as required by workers’ compensation procedure. Holder, 294 Ga. App. at 569-570. In an order dated June 25, 2007, Judge Schwall tried to remedy the matter in an order nunc pro tunc June 13, 2007, “remanding the case to the Board to resolve the factual dispute over which agreement governed.” Id. But under the applicable rules, because the court missed the 20-day deadline, the Board’s January 25, 2007 award was affirmed by operation of law. Id. The City sought discretionary review of the affirmance by operation of law. This Court granted the application, but “the appeal was later dismissed after the City failed to file an appellate brief.” Id. at 569.

Apparently no action was taken on the purported remand to the Board, and, after the remittitur was returned to the superior court, Holder filed in the superior court a “Demand for Judgment” on the Board’s January 25, 2007 award and later, an amendment thereto. See OCGA § 34-9-106. On January 22, 2008, the trial court denied the demand in reliance on its earlier decision to remand the case to the Board. Holder appealed that decision, and this Court reversed the denial on the ground that the superior court’s attempted remand to the Board was void given that “the decision of the Board approving the settlement agreement” had already been affirmed by operation of law and therefore the superior court had lost jurisdiction to enter any order. Holder, 294 Ga. App. at 570.

On April 22, 2009, in response to the reversal, the trial court entered this order:

Accordingly, this Court hereby REVERSES its Order of January 22, 2008 and GRANTS the Appellee’s DEMAND FOR JUDGMENT, determining that the STIPULATION AND AGREEMENT between parties dated January 25, 2007 ... and entered by the State Board of Workers’ Compensation is the valid and enforceable agreement, as circumscribed by OCGA § 34-9-105 (b). Accordingly, Employer/City of Atlanta shall be liable to Appellee in the amount of $72,000, plus interest and costs of appeal.

The court also scheduled a hearing for May 15, 2009 for consideration of possible penalties under OCGA § 34-9-221.

On the day of the May 15 hearing, the City moved to set aside the April 22, 2009 judgment pursuant to OCGA § 9-11-60. In support, the City attached the affidavit of the former director of the Settlement Division of the State Board who averred that the “Stipulation and Agreement” dated January 25, 2007 was entirely the product of an internal mistake and that it should never have been issued:

It was a mistake committed at the State Board due to a number of factors including an inexperienced settlement examiner, a new ICMS computer claims management system, and a new claim filing number system.

The State Board did not have a January 6, 1993 accident date in its files for Holder, and via an internal procedure, the original agreement was corrected before its original approval. Nevertheless, a second claims examiner was confused about the dates and printed a second copy of the original agreement, which had been scanned into the computer in its final form. She then “whited-out” the 15 dates listed on the cover page of the agreement and hand-wrote the date of “1/16/93” in the same place; she did not make any changes to the body of the agreement, which still refers to the original 15 injury dates. The document was then stamped as being approved on January 25, 2007, and it was scanned into the system just like the original and sent to Holder. The City argued below (and argues in this Court) that “the claimant knows that there was only one agreement signed and intended by the parties and yet has continued to pursue being paid a second time.” The City requested a hearing on its motion to set aside.

At the hearing that same day, the topic of the motion to set aside was raised. The court made clear, however, that it was “not having a hearing on the motion to set aside” on that day. Nevertheless, the court assured the parties that it would have a hearing at a later time; but none was ever held. The court did not address possible penalties, and instead ordered the parties to mediate, which ultimately proved unsuccessful.

On July 10, 2009, Holder moved to enforce the judgment entered on April 22, 2009. Nine months later, on March 2, 2010, the superior court granted Holder’s motion to enforce the judgment, denied the City’s motion to set aside, and allowed the parties to further brief the issues of penalties, interest and attorney fees. On July 20, 2010, the court entered a final order, including penalties of $14,400, interest of $34,531.20, and attorney fees of $3,750, totaling $124,900.20. The City and Novapro appeal aspects of the trial court’s final order as well as the denial of the motion to set aside.

The City contends the court erred by denying its request for a hearing on the motion to set aside filed pursuant to OCGA § 9-11-60 (d) and erred by denying the motion itself. We agree with the second contention and therefore need not reach the first. “We review a trial court’s ruling on a motion to set aside a judgment under OCGA § 9-11-60 (d) for abuse of discretion. [Cit.] ” Moore v. Davidson, 292 Ga. App. 57, 58-59 (663 SE2d 766) (2008).

Of relevance here, a motion to set aside may be brought to set aside a judgment based upon:

(2) Fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the mov-ant. ...

OCGA § 9-11-60 (d). Under this provision “even a binding award based on [a workers’ compensation settlement] agreement between the parties may be set aside on the ground of fraud, accident or mistake.” Griggs v. All-Steel Buildings, 201 Ga. App. 111, 113 (2) (410 SE2d 309) (1991). And because a settlement award by the Board may be reduced to a superior court judgment pursuant to OCGA § 34-9-106, the superior court is the proper forum. Id.; Hall & Sosebee Trucking Co. v. Smith, 201 Ga. App. 282 (410 SE2d 784) (1991).

Once the motion is made, the trial judge becomes the finder of fact based on the evidence presented. Herringdine v. Nalley Equip. Leasing, 238 Ga. App. 210, 211 (2) (517 SE2d 571) (1999) (physical precedent only). Although the court is not required to hold a hearing, it must specify the manner in which evidence on the motion is to be taken. Id. at 212 (2), and cases cited therein. See also Uniform Superior Court Rule 6.3. Because there may be no hearing, “parties who desire to raise evidentiary issues must attach affidavits to their pleadings to insure that such evidence is put before the trial court.” Id. at 213 (2), and case cited therein.

Here, the City attached an affidavit showing that it had no record of any injury to Holder dated January 6, 1993; that the first “Stipulation and Agreement” covered the settlement of the January 16, 1993 injury; that the generation of a second “Stipulation and Agreement” was entirely the product of a mistake; and that there was one and only one settlement agreement with Holder dated November 14, 2006. In addition, the terms of the first Stipulation and Agreement include a statement by Holder that there were no other accidents. Holder chose to not respond to the motion with any evidence in rebuttal. Thus, the only evidence presented shows that Holder is not entitled to the second payment and that he is attempting to recover a second payment for the same injury.

Although relief under OCGA § 9-11-60 (d) is only available where the grounds are unmixed with the negligence or fault of the movant, T. A. I. Computer v. CLN Enterprises, 237 Ga. App. 646, 648 (2) (516 SE2d 340) (1999), that principle is not properly invoked here. The superior court’s failure to issue a timely order on the City’s initial appeal to that court, which resulted in an affirmance by operation of law of the Board’s January 25, 2007 award, cannot be attributed to the City. The court below stated, “I will take blame for not signing the order timely.” Even though the City’s subsequent appeal of the default judgment to this Court was dismissed because the City failed to file a brief, there is no indication that any such appeal could have been meritorious. Indeed, in Holder’s later appeal, this Court upheld the affirmance by operation of law based on the strict requirements of workers’ compensation law. See Holder, 294 Ga. App. at 570. Compare Winnersville Roofing Co. v. Coddington, 283 Ga. App. 95, 97 (640 SE2d 680) (2006) (motion to set aside not appropriate where defendant received notice of the AU hearing but chose not to participate or to appeal the subsequent award). Thus, the failure of the City’s effort to appeal the award to the superior court on the second “Stipulation and Agreement” is entirely the fault of the trial court.

Holder contends the issues raised in the motion to set aside were raised and decided in the prior appeals of this action and that they are governed by res judicata or law of the case. But the two prior appeals were entirely controlled by a narrow legal issue: the validity and effect of the failure of the trial court to enter an order within the time allowed by law, which caused the decision of the Board approving the second settlement agreement to be affirmed by operation of law. Holder, 294 Ga. App. at 568. Furthermore, the issue of fraud or mistake was never litigated on the merits. See Cantrell v. Home Security Life Ins. Co., 165 Ga. App. 670 (1) (302 SE2d 415) (1983) (“[A] judgment rendered in conformance with an agreement to settle is not synonymous with a contested trial. Obviously, there has not been an adjudication upon the merits, despite the wording of the judgment.” [Cit.]) (punctuation omitted).

With regard to the res judicata effect of any earlier trial court order, the law of the case rule has been abolished, see OCGA § 9-11-60 (h), and those orders are subject to a proper motion to set aside:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

(Emphasis supplied.) OCGA § 9-12-40.

In conclusion, given that the City was authorized to move to set aside the superior court’s order on the ground of mistake and that, in its first opportunity to submit factual support for its argument regarding mistake, it provided unrebutted evidence that the second Stipulation and Agreement was entirely the product of a mistake, the trial court abused its discretion by failing to grant the motion to set aside. The judgment of the court below is therefore reversed and the case remanded with instruction to grant the motion to set aside and for any other proceedings necessary thereto that are consistent with this opinion. All other enumerations of error are moot.

Judgment reversed and case remanded with direction.

Barnes, E J., and Blackwell, J., concur.

Decided May 18, 2011

Reconsideration denied June 7, 2011.

Swift, Currie, McGhee & Hiers, Todd A. Brooks, for appellants.

Stephen H. Robinson, for appellee.

       But see Linehan v. Combined Ins. Co., 176 Ga. App. 815 (338 SE2d 34) (1985) (a stipulated agreement under OCGA § 34-9-15 is a “consent” award and “[a]n appeal does not lie from a judgment rendered by the consent of the appellant”) (physical precedent only).


author: PHIPPS, Presiding Judge.

text:
    A11A0006.
    RANKIN v. THE STATE.
    (711 SE2d 377)
   PHIPPS, Presiding Judge.

After a jury trial, Keith Rankin was convicted of the armed robbery of a store owner. He argues that the evidence was insufficient to authorize his conviction and that he received ineffective assistance of counsel. Finding no merit in Rankin’s claims, we affirm.

1. When an appellant challenges the sufficiency of the evidence to support the 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.”

So viewed, the evidence showed the following. The robbery occurred around 10:50 p.m. on October 11, 2006, which was a warm night. The store owner was working alone in the store when a masked man carrying a small silver gun entered and demanded money. At trial, the store owner described the man as “not tall” and wearing a black glove and an item of “army clothes” (either a shirt or pants), but she could not recall anything else about his appearance. The store owner gave the man all the money in the cash register. She did not know the total amount of money taken, but it consisted of some $20 bills, $10 bills, and $5 bills, and “more than fifty” $1 bills. The robber then fled by foot on a particular road.

About an hour later, police officers observed Rankin walking on the same road on which the robber had fled, approximately two miles from the store. At that time of night there was not much foot traffic on the road. Rankin was wearing long, camouflage-patterned shorts. One of the officers stopped Rankin because his clothing resembled that reportedly worn by the robber. Rankin had in his pockets a silver .32-caliber pistol, forty-six .32-caliber rounds, two black ski gloves, and $519 in cash, comprised of eleven $20 bills, thirteen $10 bills, thirty-two $5 bills, and nine $1 bills.

At trial, the store owner testified that the camouflage shorts Rankin was wearing at the time of his arrest, which were admitted into evidence at trial, were similar to what the robber had worn. She also testified that the gun found in Rankin’s possession, which also was admitted into evidence, was about the same size and color as the robber’s gun, after having initially stated at trial that the gun found in Rankin’s possession was “too long” to be the gun used in the robbery.

Rankin argues that the circumstantial evidence that he was the robber was insufficient to support his conviction. Where the evidence is entirely circumstantial,

such evidence must be so strong as to exclude every other reasonable hypothesis save that of the guilt of the accused. But it need not exclude every conceivable inference or hypothesis — only those that are reasonable. Whether every reasonable hypothesis except-that of the guilt of the defendant has been excluded is a question for the jury. Where the jury determines the evidence excluded every reasonable hypothesis save that of guilt, such a finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

The jury in this case was properly charged on the use of circumstantial evidence, and we do not discern a basis for disturbing its finding. Rankin was found wearing or possessing clothes similar to those worn by the robber (including ski gloves, despite the warm weather), carrying a gun similar to that used by the robber, and possessing cash in denominations similar to that taken by the robber. When he was stopped, he was walking along the same road taken by the robber when he left the scene of the robbery, a distance from that scene consistent with the amount of time that had passed, and at a time of night when there was little foot traffic. To the extent, as Rankin contends, that there were inconsistencies in the evidence regarding the store owner’s identification of Rankin’s gun or the number of $1 bills taken from the store relative to the number Rankin was carrying, it was the jury’s role to resolve conflicts in the evidence and determine the credibility of witnesses. The jury was authorized to conclude, based on the evidence, that Rankin was guilty of the armed robbery of the store owner.

2. Rankin claims that he received ineffective assistance of trial counsel. To prevail on this claim, Rankin must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, we uphold the court’s factual findings unless they are clearly erroneous and review the court’s legal conclusions de novo.

(a) Rankin asserts that his counsel committed professional error by failing to call as witnesses Rankin’s sister, his sister’s boyfriend, and his mother. At the hearing on his motion for new trial, Rankin presented evidence about what these persons would have testified to had they been called. His sister testified that Rankin was with her at her house at the time of the robbery. She also testified that she had given Rankin the cash that was found in his pocket and that Rankin had been working two jobs (evidence from which Rankin argues the jury could have inferred that he lacked a motive to rob the store). The boyfriend of Rankin’s sister testified that he saw Rankin walking near his sister’s residence at the time of the robbery. He also testified that he and Rankin’s sister had given Rankin some cash. Rankin’s mother testified to his good character and also testified that he worked two jobs and had just been paid.

Trial counsel testified that he did not call Rankin’s sister as a witness because she refused to testify after learning that she would have to submit to cross-examination, which caused him to question her credibility and to fear that, if he forced her to testify through subpoena, her testimony “could have blown up in [his] face.” Trial counsel testified that he did not call the boyfriend as a witness because he was unable to locate him, despite repeated attempts. And trial counsel testified that he did not call Rankin’s mother as a witness because he felt that if she were the sole defense witness, testifying to her son’s general character, it would suggest to the jury that the defense’s case was paltry. He testified that he chose instead to “point out the weaknesses in the State’s case,” specifically the lack of an eyewitness identification.

“The determination of which witnesses to call is a strategic and tactical decision.” “Decisions based on counsel’s reasonable trial strategy do not constitute deficient performance, and this Court does not evaluate trial counsel’s tactics and strategic decisions in hindsight.” The decision not to call witnesses, including alibi witnesses, has been held reasonable where trial counsel testified to being concerned about the witnesses’ credibility or that the witnesses’ testimony might be counterproductive to the defense. Likewise, the decision not to call character witnesses has been held not to constitute professional error where trial counsel testified to strategic reasons for not calling such witnesses. And the failure to call a witness has been held not to constitute professional error where trial counsel testified to repeatedly attempting to contact the witness, without success, and the appellant did not offer evidence to show that a competent attorney exercising reasonable diligence under the same circumstances would have been able to locate the witness.

Although Rankin offered evidence that conflicted with trial counsel’s testimony regarding why he did not call the witnesses, it was within the trial court’s discretion to resolve that conflict. The trial court was authorized to find, based on trial counsel’s testimony, that Rankin failed to overcome the strong presumption that his lawyer’s tactical decisions not to call the witnesses fell within the broad range of professional conduct and thus did not constitute professional error.

(b) Rankin asserts for the first time on appeal that his counsel committed professional error by failing to present evidence of a statement that he made to the police. The trial court had suppressed this statement, on Rankin’s motion, on the ground that his Miranda rights had been violated. Rankin did not specify, in his motion for new trial, any decisions by counsel relating to his statement as a basis for his ineffective assistance claim. At the hearing on that motion, the only references to Rankin’s custodial statement occurred when Rankin’s trial counsel was asked whether he recalled the contents of that statement and whether he would have wanted the jury to hear certain information contained therein, to which trial counsel responded that he did not recall the contents and further stated: “If you want to show me the entire statement, perhaps I could give you a complete answer about why I would seek to keep his statement out.” A series of questions about trial counsel’s case file followed this exchange; those questions did not address Rankin’s statement to the police, and trial counsel was not asked any further questions about why he sought to suppress rather than introduce the statement. Moreover, no argument was made at the hearing that any decision of trial counsel related to the statement constituted ineffective assistance of counsel. Consequently, Rankin did not preserve for appellate review a claim of ineffective assistance of counsel based on trial counsel’s decision not to introduce the custodial statement.

(c) Finally, Rankin argues that his trial counsel provided ineffective assistance of counsel because trial counsel was uncooperative. We find no merit in this claim of error. Although Rankin asserts a “[l]ack of cooperation of. . . trial counsel to appear and testify at the motion for new trial hearing,” the record shows that trial counsel did appear and testify at the motion for new trial hearing. And although Rankin asserts a “lack of cooperation of. . . trial counsel before and during trial,” his only support for the assertion is trial counsel’s failure to call his sister, his sister’s boyfriend, and his mother as witnesses, and counsel’s failure to introduce his custodial statement into evidence. Rankin has not shown that these actions of trial counsel — which, as discussed above, did not constitute professional error — nevertheless constituted a lack of cooperation rising to the level of ineffective assistance of counsel.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

Decided June 7, 2011.

Daniel L. Henderson, for appellant.

Patrick H. Head, District Attorney, Samuel K. Barger, John R. Edwards, Assistant District Attorneys, for appellee.

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

        Merritt v. State, 285 Ga. 778, 779 (1) (683 SE2d 855) (2009) (citations omitted); see OCGA § 24-4-6.

        Sims v. State, 278 Ga. 587, 589 (1) (604 SE2d 799) (2004).

       See OCGA § 16-8-41 (a) (providing, inter alia, that 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 immediate presence of another by use of an offensive weapon); Adams v. State, 245 Ga. App. 607, 609 (1) (538 SE2d 508) (2000) (although no eyewitness positively identified defendant as person who shot at victim, circumstantial evidence was sufficient to authorize jury to find defendant guilty, where defendant was discovered shortly after the shooting near the scene of the crime, at a time of night when few people would be out, his clothing matched that worn by the shooter, he possessed a firearm similar to that used by the shooter, and he attempted to run from the police); see also McCombs v. State, 306 Ga. App. 64, 66 (2) (701 SE2d 496) (2010) (the mere possibility that an individual other than the defendant committed the crime is not such a “reasonable hypothesis” that must be excluded for circumstantial evidence to authorize a guilty verdict).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

        Reid v. State, 286 Ga. 484, 486 (3) (a) (690 SE2d 177) (2010) (citation and punctuation omitted).

        Upton v. Parks, 284 Ga. 254, 257 (2) (664 SE2d 196) (2008) (citation and punctuation omitted).

       See id. (defendant failed to establish deficient performance based on trial counsel’s failure to call alibi witnesses where counsel testified that he chose to focus the defense on the state’s failure to make its case and further testified that he questioned the witnesses’ credibility and was afraid that the defendant’s case would be harmed if the witnesses “got on that stand and fell apart”; trial counsel’s testimony demonstrated that the decision not to call the witnesses was fully considered and well reasoned under the circumstances); Fortson v. State, 280 Ga. 435, 437 (2) (b) (629 SE2d 798) (2006) (trial counsel’s failure to call an alibi witness was a reasonable strategic decision and did not constitute deficient performance, where counsel testified that he did not call the witness because her testimony was not credible and counsel believed it would have been unethical and counterproductive to present it).

       See Kay v. State, 306 Ga. App. 666, 670 (5) (a) (703 SE2d 108) (2010).

       See Varner v. State, 285 Ga. 300, 302 (3) (b) (676 SE2d 189) (2009); Woods v. State, 275 Ga. 844, 847 (3) (a) (573 SE2d 394) (2002).

        Reid, supra.

       See id.

       See Allen v. State, 286 Ga. 392, 399 (5) (b) (687 SE2d 799) (2010) (appellant waived allegation of ineffective assistance based on purported deficient performance that was not raised either in motion for new trial or at hearing thereon).

       See Division 2 (a), supra.


author: BARNES, Presiding Judge.

text:
    A11A0495.
    In the Interest of A. T. et al., children.
    (711 SE2d 382)
   BARNES, Presiding Judge.

The biological mother of A. T., J. T., and L. T. appeals from the juvenile court’s orders finding that the children remained deprived, extending temporary custody with the DeKalb County Department of Family and Children Services (“DFCS”), and discontinuing reunification services. Because the juvenile court’s orders primarily relied upon inadmissible hearsay, we must vacate the orders and remand for reconsideration in light of this opinion.

On appeal from an order finding deprivation or extending temporary custody of the children to DFCS, we construe the evidence in the light most favorable to the juvenile court’s findings. See In the Interest of Q. A., 306 Ga. App. 386 (702 SE2d 701) (2010); In the Interest of R. J. M., 295 Ga. App. 886, 887 (673 SE2d 527) (2009). The same standard of review applies on appeal from a juvenile court order discontinuing reunification services to a parent. See In the Interest of J. B., 274 Ga. App. 564 (618 SE2d 187) (2005).

Viewed in the light most favorable to the juvenile court’s findings, the evidence showed that L. T. was born on December 4, 2001; J. T. was born on August 29, 2004; and A. T. was born on July 21, 2005. In February 2007, the children came into the emergency care of DFCS after J. T. suffered a brain injury. While the mother claimed that J. T. had slipped in the bathtub, medical personnel concluded that the injuries sustained by the child “were highly suspicious for non-accidental trauma.” The juvenile court adjudicated the children deprived and awarded temporary custody to DFCS.

DFCS developed a reunification case plan requiring the mother, among other things, to complete parenting classes and participate in individual and family therapy to learn how “to utilize non-harmful methods of discipline on the children.” The juvenile court entered an order approving the case plan and thereafter reviewed the plan on a periodic basis.

By November 2009, the mother had participated in several unsupervised, overnight visits with the children without incident, had undergone intensive in-home family therapy, and had made significant progress in completing her other case plan goals. Consequently, the juvenile court modified the case plan to return custody of the children to the mother, subject to her compliance with certain conditions and to DFCS’s continued supervision of the home. The juvenile court also ordered DFCS to provide “aftercare services” to the family to assist in the transition for the mother and children.

In late January 2010, the children came back into the emergency care of DFCS based upon allegations that the mother had physically abused A. T. In light of these allegations, DFCS moved for the juvenile court to find that the children remained deprived, to return temporary custody of the children to DFCS, to extend the prior deprivation order for an additional 12-month period, and to authorize DFCS to discontinue providing reunification services to the mother.

At the evidentiary hearing on these motions, an elementary school social worker testified that on January 5, 2010, she spoke with A. T., who was in first grade, after he told two teachers that he had injured his head after being tied up by his mother. The social worker testified that A. T. told her that his mother had tied his hands and feet with shoe strings because she did not want him to move. A. T. further told the social worker that he had fallen and hit his head while tied up, leading his mother to take him to the hospital, where he received two stitches. According to the social worker, A. T. said that the incident had occurred the previous Saturday, January 2, 2010. The social worker did not see any marks or bruises on A. T, but did observe that he had stitches. After A. T. disclosed this information to the social worker, she contacted child protective services, which commenced an investigation.

The DFCS case manager for the family also testified. The case manager testified that she had been monitoring the family since custody of the children had been returned to the mother in November 2009. According to the case manager, when she went to the home for an unannounced visit on January 22, 2010, A. T. told her that he had fallen while jumping on the bed, resulting in a head injury that required stitches. The mother confirmed A. T.’s account of what had happened but said she had lost the hospital discharge papers. The case manager had not yet received notice of the child protective services investigation and thus accepted A. T. and the mother’s explanation for the head injury.

The case manager returned to the home on January 26, 2010 after learning of the child protective services’ investigation into the abuse allegations and reviewing the investigatory report. She testified that A. T. then told her that his mother had tied up his hands and feet and that he had fallen and hit his head while “trying to hop.” The case manager removed the children from the home, but did not follow up with the hospital.

The mother took the stand and denied the abuse allegations. She testified that on the day A. T. hurt his head, she was watching television and her three children were at home with her. According to the mother, A. T. was jumping around in the room, and she asked him to stop, but he did not. The mother testified that a few minutes later, she looked at A. T, and he was holding his head and getting up from the ground. She saw blood on his head and took him to the hospital, where he received two stitches for his head injury. The mother denied tying up A. T. and maintained that he had injured himself when he fell on a piece of furniture. She also obtained a copy of the emergency room discharge instructions from the hospital, which were admitted into evidence.

A. T. and the other two children did not testify. The State did not present any other testimony or documentary evidence to support its claim that A. T. had been physically abused by his mother. In closing argument, the mother’s attorney maintained that the State had failed to carry its evidentiary burden on its motions. The attorney noted that although the case turned on what A. T. had said, “the children are not here to testify.”

Following the hearing, the juvenile court entered orders on March 4, 2010 and March 17, 2010 finding that the children remained deprived, returning temporary custody of the children to DFCS, extending the prior deprivation order for an additional 12-month period, and authorizing DFCS to discontinue providing reunification services to the mother. In its orders, the juvenile court extensively relied upon its finding that A. T. had been physically abused by the mother. This direct appeal followed.

1. The mother contends that there was insufficient evidence to support the juvenile court’s decision to return temporary custody of her children to DFCS for an additional 12 months and to authorize DFCS to discontinue providing reunification services. According to the mother, there was insufficient evidence that she physically abused A. T.

Under OCGA § 15-11-58 (n) (3), a juvenile court may extend a deprivation order granting temporary custody of a child to DFCS for an additional 12 months if, among other things, there is clear and convincing evidence that the child remains deprived. In the Interest of Q. A., 306 Ga. App. at 388 (2). A child is deprived who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). In turn, DFCS is authorized to discontinue reunification services if there is clear and convincing evidence that “reasonable efforts to reunify a child with his or her family will be detrimental to the child.” OCGA § 15-11-58 (h). See In the Interest of J. B., 274 Ga. App. at 566.

In concluding that the children remained deprived and that reunification with the mother would be detrimental to them, the juvenile court found that the mother had physically abused A. T. But in finding that the claim of physical abuse was established by the evidence of record, the juvenile court relied in its orders exclusively on the testimony of the elementary school social worker and the DFCS case manager regarding what A. T. told them. This testimony constituted inadmissible hearsay.

It is true that under the child hearsay statute,

[a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

(Emphasis supplied.) OCGA § 24-3-16. Yet for the social worker’s and the case manager’s testimony to be admissible under this statute, the State was required to show that A. T. was available to testify in the deprivation proceeding. See Woodruff v. Woodruff, 272 Ga. 485, 486-487 (1) (531 SE2d 714) (2000); In the Interest of B. W., 268 Ga. App. 862, 863 (602 SE2d 869) (2004). In the deprivation context, “available to testify” means that the child was “available to physically appear” at the juvenile court proceeding. In the Interest of B. H., 295 Ga. App. 297, 302 (6) (a) (671 SE2d 303) (2008). Even if the child does not actually take .the stand and is not in the courtroom, the child is “available to physically appear” if the child remains in the parent’s custody at the time of the proceeding. See id. at 302-303 (6). Likewise, the child is “available to physically appear” if the child is in the courthouse and “available if necessary” to be called as a witness. Starr v. State, 269 Ga. App. 466, 469 (2) (a) (604 SE2d 297) (2004).

In the present case, A. T. was no longer in the mother’s custody at the time of the evidentiary hearing at issue, and the mother’s attorney noted on the record that none of the children were there to testify. In the absence of any evidence of record to the contrary, we must conclude that the State failed to meet its burden of showing that A. T. was “available to physically appear” at the evidentiary hearing. It follows that A. T.’s statements to the social worker and the case manager were not admissible under the Child Hearsay Statute and that the statements were unsubstantiated hearsay. See In the Interest of B. W., 268 Ga. App. at 863.

It is well settled that in all juvenile court proceedings involving custody of a child, “all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition.” OCGA § 15-11-56 (a). It is equally well settled, however, that hearsay testimony lacks probative value, even absent an objection from the parties, and cannot support a juvenile court’s findings of fact. See In the Interest of K. I. S., 294 Ga. App. 295, 296-297 (1) (669 SE2d 207) (2008); In the Interest of H. S., 285 Ga. App. 839, 842 (648 SE2d 143) (2007); In the Interest of B. W., 268 Ga. App. at 863. And while we generally presume that the juvenile court was able to sift the wheat from the chaff to consider only the legally probative evidence, that presumption “is a theoretical one, and has no place where[, as here,] it affirmatively appears to the contrary” on the face of the juvenile court’s orders. In the Interest of K. I. S., 294 Ga. App. at 296 (1).

Decided June 7, 2011.

Moreover, although some nonhearsay testimony was presented at the hearing that might have supported the juvenile court’s ultimate determinations separate from the allegations of physical abuse, the juvenile court’s orders expressly discussed and extensively relied upon the abuse allegations, the only evidence of which was the unsubstantiated hearsay of the social worker and the case manager. Under these circumstances, we must vacate the juvenile court’s orders finding that the children remained deprived, extending temporary custody with DFCS, and discontinuing reunification services, and we must remand the case for reconsideration in light of this opinion. See In the Interest of S. J., 270 Ga. App. 598, 610 (1) (c) (607 SE2d 225) (2004); In the Interest of M. L. P., 231 Ga. App. 223, 224 (498 SE2d 786) (1998); In the Interest of J. E. E., 228 Ga. App. 831, 835 (493 SE2d 34) (1997). On remand, the juvenile court may take into account any events or circumstances relating to the mother and children that may have arisen since the original evidentiary hearing and that might affect the disposition of this case. See In the Interest of T. B., 242 Ga. App. 564, 567-568 (5) (529 SE2d 620) (2000).

2. Although unclear from her brief, the mother also appears to contend that the juvenile court erred in dismissing new deprivation complaints that were filed by DFCS for each of the three children while the other motions discussed above remained pending. In dismissing the new complaints, the juvenile court noted that the same matter was already before the court as part of DFCS’s motion to extend the prior deprivation order for an additional 12-month period. Irrespective of whether the juvenile court committed error in dismissing the new deprivation complaints, the mother has not shown how she was harmed. “It is axiomatic that harm as well as error must be shown to authorize a reversal by this court.” (Citations and punctuation omitted.) In the Interest of A. A., 293 Ga. App. 471, 475 (2) (667 SE2d 641) (2008).

Judgment vacated and case remanded with direction.

Adams and Blackwell, JJ., concur.

Lisa A. Patrick, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Kathryn A. Fox, Assistant Attorney General, Jerry W. Thacker, for appellee.

       “[A] finding that a child is deprived does not necessarily result in a loss of custody by the parent.” In the Interest of E. M., 264 Ga. App. 277 (590 SE2d 241) (2003). Pursuant to OCGA § 15-11-55 (a) (1), a juvenile court may “[plermit the child to remain with his or her parents! ] • • • subject to conditions and limitations as the court prescribes, including supervision as directed by the court for the protection of the child!.]”

       The original deprivation order entered in 2007 was extended for an additional 12 months in early 2008. See OCGA § 15-11-58 (n); In the Interest of Q. A., 306 Ga. App. at 387-388 (2). When the extension order was set to expire, DFCS filed a second deprivation petition, which the trial court granted in April 2009. DFCS subsequently moved for the juvenile court to extend the order granting the second deprivation petition for an additional 12 months, and it is that motion, and the order granting it, that are pertinent to this appeal.

       “An order within a deprivation proceeding deciding temporary custody of the child is a ‘final order,’ within the meaning of OCGA § 5-6-34 (a) (1), from which a direct appeal lies.” In the Interest of S. J., 270 Ga. App. 598, 608 (1) (a) (607 SE2d 225) (2004).

       Other than the Child Hearsay Statute, we discern no hearsay exception potentially applicable under the circumstances of this case. For example, the statements made by A. T. were made several days after the alleged incident and thus were clearly not part of the res gestae. See Allen v. State, 174 Ga. App. 206, 207-208 (1) (329 SE2d 586) (1985) (physical precedent only) (victim’s statements to foster mother “some three days after the incident” not part of res gestae); Parker v. State, 162 Ga. App. 271, 273 (5) (290 SE2d 518) (1982) (victim’s statement to mother on Monday about events that occurred on previous Friday did not come within scope of res gestae); Scott v. State, 131 Ga. App. 655, 655-656 (1) (206 SE2d 558) (1974) (victim’s description of alleged crime to police officer several days after the occurrence was not part of res gestae). Nor could A. T.’s statements be admitted under the necessity exception because, among other things, the State failed to show that A. T. was unavailable to testify even after reasonable efforts were made to secure his presence at the proceeding. See Battle v. State, 244 Ga. App. 771, 774 (536 SE2d 761) (2000).

       We also note that the child is “available to testify” even if he or she takes the stand and is “uncommunicative or unresponsive.” (Footnote omitted.) Bell v. State, 263 Ga. App. 894, 896 (1) (589 SE2d 653) (2003).

       For example, there was some testimony from the case manager that the mother had failed to ensure that the children had attended necessary medical and dental appointments.


text:
    A11A0656.
    MURRAY v. THE STATE.
    (711 SE2d 387)
   BARNES, Presiding Judge.

In a bifurcated trial, a jury first acquitted Henry Murray of numerous felony charges and then convicted him of two counts of possession of a firearm by a convicted felon. On appeal, he argues that the evidence that he possessed the firearms was insufficient. Because the State’s evidence was sufficient to establish Murray had at least constructive possession of the guns as a co-conspirator to the other crimes, we affirm.

Murray and three co-defendants were indicted on multiple counts of burglary, aggravated assault, kidnapping, armed robbery, wearing masks, and other crimes. Murray and co-defendant Anthony Mack were also charged with two counts each of possession of a firearm by a convicted felon. Co-defendant Ashley Nicole Anderson pled guilty to two counts of conspiracy to commit armed robbery and drug possession, and testified for the State.

During a four-day trial, the victims testified about a home invasion, during which three masked gunmen entered each of the adjacent apartments of two victims, who were brother and sister. The men demanded money, pistol-whipped and bound the victims, and made them lie on the floor with their faces covered while they ransacked the homes. The son of one victim returned home during the crime, and was also struck and bound. The son convinced the men to take him to the house of a friend, who gave the gunmen $750. The men then abandoned the car, which belonged to one of the victims, behind a building, leaving the son tied up in the back seat.

The son freed himself and returned to his apartment, where his uncle was trying to untie his mother. While waiting for the police and ambulance, the uncle told the son that co-defendant Anderson had been to his apartment twice that day, which was unusual. The son and a friend went looking for Anderson, and called the police when they found her and three men at a Huddle House. Responding officers approached Anderson’s car and began talking to the three men sitting inside, and to Anderson when she came out of the restaurant. Murray was seated in the back. After the police made everyone exit the car and placed them in separate patrol cars, the son approached and identified the three men as the ones who had assaulted him and his family.

An officer searched the car due to a strong odor of marijuana coming from it, and discovered two black masks and two pairs of black gloves under the back seat, a third mask and two handguns in the glove box, and items later identified as belonging to the victims. The son’s driver’s license was found in Anderson’s purse.

Anderson testified that she had ridden to Georgia from her home in Florida to visit a relative, and the three men came with her in a car rented by Murray’s mother. According to her, Murray instigated the conversation about the proposed crimes during the drive. She dropped the men at the victims’ apartment building and watched them go inside. She heard “a lot of commotion” and saw the men lead the son to his mother’s car and drive away. She followed them and picked them up after they abandoned that car. When asked if she had seen them with any guns, she responded, “When they got ready to exit the car.” The State then asked whether she had seen them with guns “[w]hen they got ready to go into the house,” and Anderson responded affirmatively. She testified she had seen the guns before, in Florida at the house of a co-defendant’s girlfriend. She saw co-defendant Christopher McIntosh remove a gun from his jacket and put it in the glove box after the robbery but did not know how the other gun came to be there.

The jury acquitted all of the defendants of all the offenses tried during this first phase of the trial. The trial court then advised the jury that Murray and a co-defendant were also charged with two counts each of possession of a firearm by a convicted felon. During this phase, the State introduced without objection certified copies of three felony convictions against Murray and one felony conviction against McIntosh. Murray and McIntosh testified and denied owning or possessing the guns found in the glove box of the rental car. McIntosh testified that Anderson lied when she said she had seen the guns at his girlfriend’s house. In response to a question during cross-examination about whether Anderson had been lying, Murray responded that Anderson never said he had possessed guns, only that she had seen them at someone else’s house. After the jury convicted both men of the gun charges, the trial court sentenced them each to five years in confinement on each count, to be served consecutively.

Murray argues on appeal that his convictions were based on insufficient evidence because no rational factfinder could have found him guilty beyond a reasonable doubt of the firearms charges, because the State presented no evidence that he had actually possessed the guns. Evidence that he was a back seat passenger in the car with no ready access to the guns was insufficient to prove he had constructive possession of the guns, he argues.

We consider the evidence in the light most favorable to the verdict, and neither weigh it nor decide witness credibility. Parramore v. State, 277 Ga. App. 372 (626 SE2d 567) (2006). The test for sufficiency is whether any rational trier of fact could have found the central elements of the crime beyond a reasonable doubt. Davis v. State, 287 Ga. App. 783, 784 (1) (653 SE2d 107) (2007) (citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979)). In this state, the fact that a verdict of acquittal on one count is inconsistent with a verdict of guilty on another count does not invalidate the guilty verdict. Tanksley v. State, 281 Ga. App. 61, 62 (1) (635 SE2d 353) (2006). Thus, “the issue is not whether an acquittal on one charge would logically necessitate acquittal on another charge on which the jury convicted the defendant; rather[,] the sole question is whether the evidence viewed in favor of the conviction was sufficient to support the guilty verdict.” Id. Therefore, when deciding on a charge of firearm possession by a convicted felon, the jury may consider all the evidence presented during the first phase of the trial, regardless of the verdict in the first phase. See Davis, 287 Ga. App. at 783.

Under OCGA § 16-11-131 (b) a person who has been convicted of a felony “and who receives, possesses, or transports any firearm commits a felony.” Constructive possession is sufficient to establish the offense, which can also be established by circumstantial evidence. Slater v. State, 209 Ga. App. 723, 724 (1) (434 SE2d 547) (1993). “Constructive possession exists where a person[,] though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, and it must be based upon some connection between the defendant and the contraband other than spatial proximity.” Cox v. State, 300 Ga. App. 109, 110 (684 SE2d 147) (2009). When the State’s constructive possession case is based wholly on circumstantial evidence, the law requires that “the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” (Citation and punctuation omitted.) Reid v. State, 212 Ga. App. 787, 789 (442 SE2d 852) (1994).

Murray does not dispute that he is a convicted felon. His argument is that the State failed to prove he received, possessed, or transported any firearms. Despite the jury’s acquittal on the other offenses, however, the evidence would have been sufficient to convict him of burglary, armed robbery, aggravated assault and kidnapping, and thus was also sufficient for the jury to find that Murray and his co-defendants conspired to possess the two handguns. “Because the act of any one of the conspirators is the act of all, and because [Murray’s] co-conspirator . . . possessed the weapon, it follows that [Murray] was in constructive possession of the weapon.” Davis, 287 Ga. App. at 785 (1). “Constructive possession is sufficient to show a violation of the offense of possession of firearm by a convicted felon.” Slater, 209 Ga. App. at 724. Accordingly, this enumeration of error is without merit.

Decided June 7, 2011.

Timothy L. Eidson, Steven D. Knittle, for appellant.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.