text:
    A13A0293.
    HARRELL v. THE STATE.
    (744 SE2d 105)
   PHIPPS, Presiding Judge.

Two masked men held up a gas station, making off with a substantial amount of cash. In connection with that incident, a jury found Julius Demetrius Harrell and his co-defendant guilty of armed robbery and possession of a firearm during commission of a crime (the armed robbery). Challenging his convictions therefor, Harrell contests the sufficiency of the evidence and the denial of his motion to sever his trial from that of his co-defendant. We affirm.

1. When an appellant challenges the sufficiency of the evidence to support a 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 gas station was located in the City of Duluth, and functioned also as a check-cashing store. At about 8:30 p.m. on February 22, 2007, two men entered the store. Each man was wearing a mask that covered his head. One customer was inside the store. The store’s clerk was in the back office, counting money. That room was located just behind the check-out counter, and an interior window permitted visual access between it and the customer shopping area. One of the masked men, using his left hand, pointed a handgun at the clerk. By the time the clerk realized that his life was being threatened, the second masked man had rounded the check-out counter, entered the back office, and ordered the clerk to the floor. The clerk instantly complied. The second masked man hurriedly collected the cash from the back office, including that which was hidden in unlocked file cabinet drawers, then stashed the collected cash in a bag he already had with him. The masked men fled the store, taking with them roughly $84,000 in United States currency.

The clerk summoned police, who confiscated a video-recording of the criminal episode, which was later shown to the jury. The clerk was never able to identify either robber, but recalled that the gunman was noticeably taller than the bagman. Police investigation led to a man who was later indicted for his involvement in the heist. That man entered a negotiated guilty plea, pursuant to which he testified as a witness for the state. At the underlying joint trial, he identified the two masked men: (i) Harrell (the appellant), as the bagman; and (ii) Manuel Miguel Rivera (who was Harrell’s co-defendant at trial), as the gunman. Further, the man admitted that he had served as the getaway driver.

While on the stand, the getaway driver supplied these details about events before and after the armed robbery. Earlier on the date in question, he had picked up both Harrell and Rivera. As the three of them rode around plotting to commit an armed robbery, they cased and then selected the gas station, noting in particular its surveillance equipment, a back office, an open door to that room just around the counter, and a money counter on a table in that back room. Rivera had with him a pistol with a scope, and he and Harrell purchased head masks. As the getaway driver surmised at trial, “[T]he whole plan was for [Rivera] to go in and pull out the gun and [Harrell] to go to the back room and get the money.” Accordingly, upon returning to the gas station with the weapon and masks, the three of them first monitored the activities upon the premises. Then, when there was only one customer inside the store, Harrell and Rivera left the vehicle and headed for the store. Each put on a head mask, and Rivera carried the firearm. Moments later, the two ran back to the waiting vehicle. Harrell was carrying a bag of money. Later that evening, Harrell and Rivera gave the getaway driver $5,000 of the stolen money.

The getaway driver, Harrell, and Rivera had attended the same high school, each graduating in 2005 or 2006. The getaway driver testified that Harrell was about 5'7" and Rivera was over 6 feet tall. Also, the getaway driver testified that Rivera was left-handed. The getaway driver had known neither Harrell nor Rivera to either work a job or own a vehicle. In February 2007, when the armed robbery was committed, Rivera was living with Harrell in an apartment.

On the morning after the armed robbery, Harrell and Rivera called the getaway driver and asked for a ride to a used-car lot. He agreed, and dropped them off. The next time he saw Harrell and Rivera, each was driving an SUV. The getaway driver further testified that, each time he saw Harrell and Rivera after the robbery, “they always had nice clothes and jewelry,” and “everything was new. I kept seeing them wearing different clothes, different jewelry, so forth.”

The used-car lot vice president recalled assisting Harrell and Rivera as each picked out an SUV. He testified that on February 23, 2007, which was the day after the armed robbery, Harrell purchased a 1999 Ford Expedition, paying for the vehicle in cash; Rivera purchased on that day a 1998 Range Rover, making a $7,300 cash down payment. Five days later, Harrell and Rivera returned to the used-car lot. Harrell traded the Expedition for a Lincoln Navigator, paying an additional $2,000 in cash; Rivera paid in cash the approximately $2,500 balance remaining on his SUV.

A friend of Harrell testified that, as of late February 2007, Harrell was living with his mother and had no job — except that he occasionally “picked up a paycheck” from his mother. Yet, as the friend remembered, Harrell obtained an Expedition, and soon thereafter, “a nice — decent car.” During that time, the friend had further noticed that Harrell had begun to acquire expensive clothing and other items. So the friend asked Harrell, “How did you obtain your money?” The friend testified that Harrell remained “tight-lipped” and would explain only that “it was a gravy lick.” According to Harrell’s friend, “Street terminology for a lick is either a robbery or maybe you come upon some money some way, somehow. You know, it has numerous amount of definitions or what have you.”

Thus, the state called to the stand a police lieutenant who had worked for 17 years with the City of Duluth Police Department, who was then assigned to the division of criminal investigations for robberies, and who had responded to between 75 and 100 armed robberies. On direct examination, the stated elicited the following:

Q: And based on your training and experience, what does the term “a lick” mean?
A: It’s a street term for robbery.
Q: Do you know it to mean anything other than a robbery?
A: No, sir.

As a similar transaction to show Rivera’s bent of mind and course of conduct, the state presented evidence of an armed robbery that had occurred at a sandwich shop three days before the armed robbery at the gas station. Like the gas station, the sandwich stop was located in Duluth. At about 8:30 p.m., a masked man about six feet tall entered the shop. He was carrying a handgun and a bag. There was no customer in the shop at the time, and the masked man aimed the weapon so that its red laser light reflected on the store’s clerk. He approached the clerk and ordered her to take the money out of the cash register and put it in the bag; she complied. Next, the gunman guided the clerk to a back room, where he ordered her to take the money out of a safe that was hidden underneath a table and to put that money in his bag; she complied. The man fled the store, taking with him between $500 and $600 of the store’s cash. Based on her observations of the masked gunman, the clerk discerned that he was Rivera, with whom she had worked at the store for several months in late 2006. Additionally, she and the shop’s co-owner, who also had worked with Rivera during those several months prior to that incident, testified that Rivera was left-handed. A video-recording of the armed robbery, which had been captured by surveillance equipment, was shown to the jury.

Neither Harrell nor Rivera testified. Rivera presented no witnesses, but Harrell called his mother to testify that he had once obtained a “settlement” and that he had worked prior jobs. Harrell’s mother also testified that, in December 2006, Rivera had nowhere to live and had thus moved into her apartment, where Harrell also lived.

On appeal, Harrell maintains that the evidence was insufficient, pointing out that the gas station clerk was unable to identify him as one of the two masked men and that the video-recording of the armed robbery failed to clearly depict either perpetrator’s face. Therefore, Harrell argues that his felony convictions rested solely on the uncorroborated testimony of an accomplice, the getaway driver, in violation of then applicable OCGA § 24-4-8.

Under that Code section, “the testimony of an accomplice used to convict the [defendant] of a crime must be supported by independent corroborating evidence as to the identity and participation of the [defendant] tending to connect him to the crime.” However,

slight evidence of corroboration connecting the defendant with the crime satisfies the requirements of OCGA § 24-4-8 and that evidence may be entirely circumstantial. Also, evidence of the defendant’s conduct before and after the crime may give rise to an inference that he participated in the crime.

Even “[the defendant’s] own statement can serve to corroborate his accomplice’s inculpatory testimony.” “The corroborating evidence need not be sufficient by itself to convict [a defendant], nor does the testimony of an accomplice need to be corroborated in every detail.”

Here, the state presented the requisite corroboration. The getaway driver’s testimony about the heights of Harrell and Rivera was consistent with the gas station clerk’s comparison of the heights of the bagman and the gunman. Additionally, the jury was authorized to find from the testimony of witnesses other than the getaway driver that, around the time of the armed robbery, Harrell had held no job and that he and Rivera lived with Harrell’s mother; that the morning after approximately $84,000 in cash was taken during the armed robbery, Harrell paid cash for an SUV; and that five days after purchasing that SUV, Harrell paid an additional $2,000 in cash to trade it for another vehicle. The jury was authorized to find from the testimony of witnesses other than the getaway driver that, around this time, Harrell began wearing expensive clothing and other items which, together with acquiring two vehicles, attracted the attention of his friend who pointedly asked him, “How did you obtain your money?” The jury was authorized to conclude from the testimony of witnesses other than the getaway driver that Harrell conveyed to his friend that he had obtained the money by committing robbery.

The sufficiency of evidence corroborating the testimony of an accomplice is a matter for the jury, and [where, as here,] the verdict [s] [are] supported by “slight evidence” of corroboration connecting the defendant with the crime [s], this court will not say that the evidence did not authorize the verdict [s] ,

Therefore, this challenge to the sufficiency of the evidence fails.

2. Harrell contends that the trial court erred in denying his motion for directed verdict of acquittal.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged, i.e., under the rule of Jackson v. Virginia, [] whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

Harrell argues that the state failed to exclude the possibility that the cash he used to purchase the SUVs was gained through lawful means, citing his mother’s testimony that “he got a settlement” and that he had worked various jobs. Concerning the latter, Harrell’s mother stated that he had “worked with me at my center as a afterschool teacher”; that he had “worked odds and ends jobs” with “a carpet cleaning guy”; that he had done “security work” during a road race; that he had worked “through the school program” when he was in high school; and that he had worked at a grocery store when he was about 15 or 16 years old.

But Harrell’s mother gave no details about the amounts or dates of any settlement monies received by him. And as to his employment history, Harrell’s mother gave no relevant details concerning the duration of time Harrell worked or the amount of money earned through his employment. And even if she had, “the jury was authorized to disbelieve [Harrell’s mother’s] testimony and credit the testimony of the [s]tate’s witnesses.” It was for the jury “to resolve any conflicts or inconsistencies in the evidence, just as the credibility of the witnesses was a matter within the province of the jury.” When this court reviews the sufficiency of the evidence, “it does not re-weigh the evidence or resolve conflicts in witness testimony, but instead it defers to the jury’s assessment of the weight and credibility of the evidence.”

Here, the getaway driver identified Harrell as the masked bag-man during the armed robbery at the gas station. Evidence further showed that, around the time of the armed robbery, Harrell held no job and lived with his mother in her apartment; the week after roughly $84,000 in cash was taken during the gas station armed robbery, Harrell paid cash for an SUV, then paid additional cash to trade into another SUV; meanwhile, he upgraded his clothing and jewelry; and when asked by a friend how he had obtained the money, Harrell conveyed that he had committed robbery. Viewed in the light most favorable to the prosecution, the evidence authorized the jury to find that the state had proved beyond a reasonable doubt that Harrell was guilty of the crimes for which he was convicted.

3. Harrell contends that the trial court erred by not granting his motion to sever his trial from that of his co-defendant, Rivera. Harrell claims that his convictions resulted from a prejudicial spillover effect of evidence against Rivera, citing the similar transaction evidence admitted only against Rivera.

The following three factors must be considered by a trial court when exercising its discretion in regard to a motion to sever in a case in which the death penalty is not sought:

(1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that admissible evidence against one defendant will be considered against the other despite the court’s instructions? (3) Are the defenses antagonistic to each other or to each other’s rights?

In this case, there was no showing that any confusion was engendered by the number of defendants or by the applicable law. The record reflects that the trial court aptly instructed the jury that

evidence of other acts or occurrences of Defendant Rivera that are sufficiently similar or connected, and therefore purportedly related to the offenses for which he is on trial, may be considered for the limited purpose of showing, if it does, the bent of mind and course of conduct of said defendant in the crimes charged in the case now on trial. Such evidence, if any, may not be considered by you for any other purpose, and may not be considered at all concerning the Defendant Harrell.

The trial court provided ample instructions on principles of parties to a crime, explaining further that the defendants were “on trial for the offenses charged in this bill of indictment only and not for any other acts or occurrences, even though such acts or occurrences may incidentally be criminal,” and that “[t]hough you may consider all of the evidence as a whole, conviction of one defendant does not necessarily require conviction of another. You, the jury, must determine guilt or innocence of each defendant separately.”

Decided June 4, 2013.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

The defenses of Harrell and his co-defendant were not shown as antagonistic; “neither attempted to point the blame at the other. They simply argued that the prosecution had failed to meet its burden of proof.” And although Harrell asserts that the joint trial harmed him because the evidence against his co-defendant was stronger than the evidence against him, “it is not enough for the defendant to show that he would have a better chance of acquittal at a separate trial or that the evidence against a co-defendant is stronger. The defendant must show clearly that a joint trial prejudiced his defense, resulting in a denial of due process.” Harrell has made no such showing. Accordingly, he has not demonstrated that the trial court abused its discretion in denying his motion for a separate trial.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

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

       When Harrell’s trial was conductedin November 2008, OCGA § 24-4-8 (2008) pertinently provided: “The testimony of a single witness is generally sufficient to establish a fact. However, in... felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness.”

        Ladson v. State, 248 Ga. 470, 475 (5) (285 SE2d 508) (1981) (citations and punctuation omitted).

        Parkerson v. State, 265 Ga. 438, 439 (2) (457 SE2d 667) (1995) (footnotes omitted).

        James v. State, 316 Ga. App. 406, 408-409 (1) (730 SE2d 20) (2012) (footnote omitted).

        Terrell v. State, 271 Ga. 783, 786 (3) (523 SE2d 294) (1999) (citations omitted).

        Ladson, supra (citation and punctuation omitted); see Terrell, supra; see generally Jones v. State, 271 Ga. 433-434 (520 SE2d 690) (1999) (determining that requisite corroboration was supplied for accomplice’s testimony by defendant’s own statement); Cox v. State, 243 Ga. App. 790-792 (534 SE2d 464) (2000) (determining that in prosecution for armed robbery at a store by two men, where one of the men had a towel wrapped around his face and removed $6,000 to $7,000 from a safe, corroboration was supplied by evidence, inter alia, that within 45 minutes of the crime, appellant was seen running out of a dirt path that led from the store and carrying a gun which he tried to conceal in a towel; footprints on that path led directly to the vacant apartment where appellant’s mother had lived three weeks before; and within two hours of robbery, appellant was seen with “folded up, knots of money”).

       Supra.

        Dorsey v. State, 279 Ga. 534, 542 (3) (615 SE2d 512) (2005) (citations omitted).

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

        Mearidy v. State, 287 Ga. 312, 313 (696 SE2d 61) (2010) (citations omitted); see Foster v. State, 273 Ga. 34, 35 (1) (537 SE2d 659) (2000) (“Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence.”).

        McLean v. State, 291 Ga. 873, 874 (1) (738 SE2d 267) (2012) (citation and punctuation omitted).

       See Jackson, supra.

        Williams v. State, 280 Ga. 584, 587 (3) (630 SE2d 370) (2006) (punctuation and footnote omitted).

       See generally Murphy v. State, 263 Ga. App. 62, 63 (1) (587 SE2d 223) (2003) (noting that qualified jurors under oath are presumed to follow the trial court’s instructions).

        Moon v. State, 288 Ga. 508, 510 (2) (705 SE2d 649) (2011).

        Herbert v. State, 288 Ga. 843, 845 (2) (708 SE2d 260) (2011) (citations omitted).

        See Moon, supra; Herbert, supra; Williams, supra at 587-588 (3); White v. State, 315 Ga. App. 54, 62-63 (7) (726 SE2d 548) (2012).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A13A0340.
    HARRIS v. THE STATE.
    (744 SE2d 111)
   Branch, Judge.

Walter Eugene Harris was indicted, tried by jury, and convicted of burglarizing Tubman Middle School in Richmond County and sentenced as a recidivist to serve 20 years. Following the denial of his motion for new trial, Harris appeals. He argues that the State failed to present evidence that he was in the school without authority or that he had the appropriate criminal intent. We affirm.

Construed in favor of the verdict, the evidence shows that at about 9:40 p.m. on March 6, 2009, someone used a large piece of concrete to break a window in a door on the side of the school gymnasium, which activated an alarm that eventually led police to respond. Blood was found on the inside of the door and a trail of blood led to the parking lot; it appeared that the perpetrator had cut himself on the broken glass while reaching through the window in an effort to enter the building. DNA samples taken voluntarily from Harris matched the blood found at the scene. The principal of the school at the time testified that there was no damage to the main school building, which is separated from the gymnasium by a 15- to 20-foot breezeway, and nothing was missing from the gymnasium or the school. At the time of the incident, computers were located in the media center in the main school building, the door to which was located about 15 to 20 feet away from the gymnasium. Harris was not an employee of the school or a parent of a student. Harris did not present any evidence or testify.

Harris contends that the verdict was “contrary to the evidence,” “contrary to the law and the principles of justice,” and “strongly against the weight of the evidence.” These arguments ask this court to grant a new trial based on the general grounds set forth in OCGA §§ 5-5-20 and 5-5-21. But these arguments are solely addressed to the discretion of the trial court:

Amotion for new trial based on OCGA § 5-5-20, i.e., that the verdict is contrary to the evidence, addresses itself only to the discretion of the trial judge. Whether to grant a new trial based on OCGA § 5-5-21, i.e., that the verdict is strongly against the evidence, is one that is solely in the discretion of the trial court, and the appellate courts do not have the same discretion to order new trials.

(Citations omitted.) Smith v. State, 292 Ga. 316, 317 (1) (b) (737 SE2d 677) (2013). See also Kendrick v. Kendrick, 218 Ga. 460 (1) (128 SE2d 496) (1962) (the argument that the verdict is contrary to “the principles of justice and equity” is also solely in the discretion of the trial court) (citations omitted), superseded by statute on other grounds; Ga. Power Co. v. Slappey, 121 Ga. App. 534, 536 (3) (174 SE2d 361) (1970); Rowland v. State, 228 Ga. App. 66, 68 (2) (491 SE2d 119) (1997) (same). Instead, when an appellant asks this court to review either a lower court’s refusal to grant a new trial or its refusal to grant a motion for a directed verdict, “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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

To prove that Harris committed the crime of burglary, the State was required to present sufficient evidence to show that Harris entered or remained in the school “without authority and with the intent to commit a felony or theft therein.” OCGA § 16-7-1 (b). See also Lloyd v. State, 168 Ga. App. 5 (308 SE2d 25) (1983) (same). Harris’s blood was found on the interior of the door, and he does not challenge the sufficiency of the evidence that he entered the school.

1. Harris contends the State failed to present evidence to show that his entry into the school occurred without authority. The State may prove lack of authority to enter with circumstantial evidence. Ursulita v. State, 307 Ga. App. 735, 737 (1) (706 SE2d 123) (2011); Jones v. State, 258 Ga. 25, 27 (1) (365 SE2d 263) (1988). Here, the State presented evidence to show that the building had an alarm that was set for the night; Harris entered by breaking a window and setting off the alarm; Harris was not an employee or parent of a student at the school; and Harris fled after setting off the alarm. These facts provide circumstantial evidence to show that Harris lacked authority to enter the school. See, e.g., Lloyd, supra (evidence that a door had been pried open was sufficient to show defendant’s lack of authority to enter building).

2. Harris also contends there is no proof of his intent to commit burglary. But intent to commit burglary may be proved by circumstantial evidence. Nelson v. State, 277 Ga. App. 92, 95 (1) (a) (625 SE2d 465) (2005). And “[flntent may be found by the jury upon consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is being prosecuted.” (Footnote omitted.) Palmer v. State, 243 Ga. App. 656, 657 (533 SE2d 802) (2000).

More specifically, Harris cites the principle that an inference of intent to steal is raised “where evidence shows an unlawful entry into a building where valuable goods are stored inside and no other motive is apparent.” Tate v. State, 253 Ga. App. 723, 724 (3) (560 SE2d 303) (2002). He argues that no evidence was presented to show that there was anything of value in the gymnasium and the computers were located in a separate building. But intent may be inferred from other evidence as well. Adams v. State, 284 Ga. App. 534, 535 (1) (644 SE2d 426) (2007). Thus, in Adams we affirmed the defendant’s conviction of burglary and held that sufficient evidence of intent to commit burglary was' shown by evidence that Adams broke a window of a daycare center at night and left his own blood on the interior window ledge, even though there was no evidence that any items were taken or that valuable goods were stored on the premises. Id. "[T]he jury could infer an intent to steal based on the evidence of an unlawful entry into a building housing an operating business.” (Footnote omitted.) Id. at 535-536 (1).

Decided June 4, 2013.

Edgar A. Callaway, Jr., for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

Here, with no other apparent motive, Harris broke into an operational school gymnasium that was part of a school that contained valuable resources in a nearby location. Moreover, it is well known that buildings contain valuable materials such as copper wire and pipes and that these materials are often stolen. See, e.g., Floyd v. State, 319 Ga. App. 564, 565 (737 SE2d 341) (2013) (copper wire and pipes); Garrett v. State, 317 Ga. App. 520, 523 (732 SE2d 93) (2012) (copper wire). We conclude that the evidence was sufficient to prove intent as well as burglary and therefore affirm the conviction. See Tate, supra; Palmer, supra (intent to commit theft found where defendant was seen leaning into broken car window without permission and defendant fled when confronted).

We conclude that any rational trier of fact could have found the essential elements of burglary beyond a reasonable doubt. See Jackson, supra at 319 (III) (B).

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur.

       OCGA § 5-5-20 provides as follows: “In any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, the judge presiding may grant a new trial before another jury.”

       OCGA § 5-5-21 provides as follows: "The presiding judge may exercise a sound discretion in granting or refusing new trials in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.”


author: PHIPPS, Presiding Judge.

text:
    A13A0518.
    PYE v. THE STATE.
    (742 SE2d 770)
   PHIPPS, Presiding Judge.

A jury found Trent Pye guilty of rape and other crimes. The trial court denied Pye’s motion for new trial, and he appeals. He argues that the evidence was insufficient as to the rape conviction and that the trial court erred in denying his motion for new trial which asserted claims of an erroneous jury charge and ineffective assistance of counsel. We affirm.

1. Pye argues that the evidence was insufficient as to the rape conviction because of conflicts and inconsistencies in the evidence.

When reviewing a defendant’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

The evidence in the light most favorable to the verdict showed the following. On June 2, 2008, Pye called his ex-girlfriend, H. J., and asked her for a ride home from work. H. J. agreed to give him a ride home and told him to meet her at a gas station near his workplace at 9:00 p.m. Pye met H. J. at the gas station at 9:00 p.m. Pye entered the vehicle, and H. J. drove toward Pye’s home, which was in the direction of an interstate. Before arriving at the interstate, Pye told H. J. that he wanted her to take him “across town.” In her experience with Pye, those words meant that he wanted to go to a particular location — the “Cut” — to get drugs and get high. H. J. refused to take him there. Pye then grabbed the back of her neck and put a knife to her throat. The vehicle swerved, and H. J. turned onto the ramp leading to the expressway, to drive to the Cut.

As H. J. drove, Pye kept his left hand on the back of the driver’s seat and his right hand in his lap with the knife; H. J. cried. They neared the Cut, and Pye told H. J. that he did not want to go there — that he just wanted to go somewhere and talk. H. J. then pulled her vehicle into a service station which was located across the street from a pharmacy; but Pye directed her to a cemetery, at a remote location. Once there, Pye demanded that H. J. turn off the vehicle and the headlights. H. J. complied. Pye, with knife still in hand, began talking about his life and expressed suicidal ideation. H. J. testified, “After he got done talking, he said, you know the only reason I brought you up here was to have sex with you.” H. J. begged Pye, “Please don’t do this.”

At the remote location where there were “no lights, there’s no — nothing. It’s just woods. There’s nowhere to run. There’s nowhere to go. There’s no people. There’s no houses. There’s nobody to hear you,” Pye demanded that H. J. exit the vehicle, which she did; Pye then exited the vehicle, and demanded that H. J. take off her pants and panties and bend over. Pye grabbed H. J. “really hard” and inserted his penis in H. J.’s vagina. H. J. testified she tried not to do anything to upset Pye for “fear that he would kill me.” Afterward, Pye had H. J. take him home.

After she dropped off Pye, H. J. went to the home of her then-current boyfriend, and she told him what had happened. H. J.’s boyfriend advised her to call the police. The next day, H. J. drove to a police station and reported the incident. A sexual assault examination was conducted. There was no evidence of trauma to H. J.’s vaginal area, but tests later revealed, with a reasonable, scientific certainty, the presence of Pye’s DNA on a vaginal cervical swab obtained from H. J. during her sexual assault examination.

Pye testified at trial and admitted that he had engaged in sexual intercourse with H. J. that night at the cemetery, but claimed that it was consensual, as was the drive to the cemetery.

As to his challenge to the sufficiency of the evidence because of conflicts and inconsistencies, Pye specifically points out that although H. J. testified that Pye inserted his penis in her vagina, forcibly and against her will, Pye testified that H. J. had consented to engaging in sexual intercourse with him; and Pye also points out that H. J. delayed reporting the incident. But “[a] delay in reporting an alleged rape goes to the credibility of the victim, which is solely a jury question.” “It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” “It [was] also for the jury to determine whether the victim consented or whether any lack of resistance sprang from reasonable apprehension of great bodily harm, violence, or other dangerous consequences to herself.” Despite the lack of physical trauma and Pye’s claim that the sexual intercourse was consensual, the evidence was sufficient to find lack of consent based on H. J.’s testimony that she was forced to submit to intercourse against her will.

2. Pye contends that the trial court erred in charging the jury that “a victim’s testimony in a case involving rape is sufficient, even without more, to sustain a conviction,” because the trial court failed to “buttress the charge . . . with an additional charge regarding the State’s required burden of proof.” Pye argues that without the additional “burden of proof” charge, the instruction given “effectively reduced the State’s burden of proof by providing a lower standard based solely on the victim’s testimony,” thereby allowing the jury to focus “solely on the Court’s charge directed at the victim’s testimony,” and convict him based on H. J.’s testimony alone. Contrary to his contention, no error has been shown.

After the trial court charged the jury, the court asked whether there were any objections to the charge. The prosecutor replied, “No.” But Pye’s attorney did not reply. Despite the lack of objection below, the giving of this charge was raised in Pye’s amended motion for new trial and is enumerated as error on appeal. Thus, pursuant to State v. Kelly, and the mandate of OCGA § 17-8-58 (b), we must review the charge to determine whether it constituted plain error.

Kelly sets forth a four-prong test: First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

“It is well established that a victim’s testimony, without more, is sufficient to sustain a conviction for rape.” “The principle contained in the charge is a correct statement of the [relevant law]. Therefore, [Pye] cannot satisfy the first two prongs of the plain error test — that a clear or obvious legal error occurred.” Thus, we find no error, much less any plain error pursuant to OCGA § 17-8-58 (b).

To the extent that Pye argues that the trial court was required to “buttress” the charge complained of by immediately following said charge with an instruction concerning the requirement of “sufficient proof of evidence beyond a reasonable doubt,” we disagree. “[I]n assessing an assertion of an erroneous jury instruction, including claims that a charge is... misleading to the jury, the instruction must be evaluated in the context of the trial court’s jury instructions as a whole.” “The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.” “There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.”

Pye’s defense at trial was that the sexual intercourse was consensual. In charging the jury on the crime of rape, the trial court provided the statutory definition of the crime and stated, “The State must prove each of these elements beyond a reasonable doubt.” The trial court further pertinently charged as follows:

The lack of consent on the part of the alleged victim is an essential element of the crime of rape and the burden of proof is on the State to show a lack of consent on the part of the alleged female victim beyond a reasonable doubt. If the State fails to prove such beyond a reasonable doubt, then you should acquit the Defendant. However, consent induced by force, fear, or intimidation does not amount to consent in law and does not prevent the intercourse from being rape. Consent to sexual intercourse obtained through present or immediate fear or serious — of serious bodily injury to the female involved is equivalent to no consent at all. The necessary penetration need only be slight and may be proved by indirect or circumstantial evidence. A victim’s testimony in a case involving rape is sufficient even without more to sustain a conviction.

The trial court had earlier charged the jury on the presumption of innocence, including that said presumption “remains with the Defendant until it is overcome by the State with evidence that is sufficient to convince you beyond a reasonable doubt that the Defendant is guilty of the offenses charged.” The trial court had also earlier charged the jury extensively on the state’s burden of proof to prove each element of the crimes charged beyond a reasonable doubt. The trial court had charged the jury on determining the credibility of witnesses and resolving any conflicts in the evidence.

“There is no requirement in our Code as to the particular form and order in which a judge should give applicable principles of law in charge to the jury. The thing of paramount importance is that the jury be given the controlling issues and the law applicable thereto.” Here, “[t]he charge was not error for the assigned reason that it was . . . misleading. . . . Nor, in the absence of a special request to charge, did the court err in omitting to state to the jury, in connection with such [charge], ... the standard of the burden of proof.” We do not find from the charge as given that the jury would have been misled to the point that it would have applied a standard below the reasonable doubt standard as the state’s burden of proof. Nor do we find that the charge at issue overemphasized the option of finding Pye guilty. “The portion of the trial court’s charge alleged to be erroneous must be viewed in the context of the charge in its entirety, and the charge given, considered in its entirety, is correct.” “Therefore, [Pye] has failed to show plain error in the charge.”

3. Pye contends that he received ineffective assistance of counsel because his attorney’s failure to object to the court’s charge to the jury that “a victim’s testimony in a case involving rape is sufficient, even without more, to sustain a conviction,” subjected appellate review of the alleged error to the more stringent plain error standard rather than the de novo standard of review which would have been undertaken had trial counsel objected at trial.

[I]n order to prevail on [a claim of ineffective assistance of counsel], [Pye] must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance. [] If [Pye] fails to meet this burden of proving either prong of the Strickland test, this relieves the reviewing court of the need to address the other prong.

“In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.” We thus review de novo the trial court’s “legal conclusion that counsel was [not] ineffective.”

Decided June 4, 2013.

Jonathan A. Kesler, for appellant.

Garry T. Moss, District Attorney, Lara A. Snow, Cliff Head, Shannon G. Wallace, Assistant District Attorneys, for appellee.

As discussed in Division 2, Pye has failed to demonstrate error in the trial court’s jury instructions; therefore, there is no support for this claim of ineffectiveness of counsel. “The failure to make a meritless objection is not evidence of ineffective assistance.” Accordingly, the trial court did not err in denying Pye’s motion for new trial on this ground.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

        Kilby v. State, 289 Ga. App. 457 (1) (657 SE2d 567) (2008) (citations and footnotes omitted); see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Roberts v. State, 242 Ga. App. 621, 624 (1) (a) (530 SE2d 535) (2000) (footnote omitted).

        Strozier v. State, 314 Ga. App. 432, 437-438 (2) (724 SE2d 446) (2012) (punctuation and footnote omitted); see Littleton v. State, 225 Ga. App. 900, 901 (1) (485 SE2d 230) (1997) (question of whether victim consented to intercourse was an issue of witness credibility for the jury).

        Roberts, supra (punctuation and footnote omitted).

       See Johnson v. State, 245 Ga. App. 690, 691 (1) (538 SE2d 766) (2000) (jury was authorized to reject defendant’s testimony and accept victim’s testimony depicting noneonsensual, forcible intercourse); Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990) (despite lack of physical trauma and defendant’s claim that sex was consensual, there was sufficient evidence of forcible rape when victim testified that she was forced to submit to intercourse against her will); Littleton, supra (“lack of resistance, induced by fear, is not legally cognizable consent but is force”) (citation and punctuation omitted); OCGA § 16-6-1 (a) (1).

       290 Ga. 29 (718 SE2d 232) (2011).

       Id. at 32 (1).

        Coleman v. State, 317 Ga. App. 409, 410 (1) (731 SE2d 94) (2012) (footnote and emphasis omitted).

        Strozier, supra at 437 (2) (punctuation and footnote omitted).

        Coleman, supra at 411 (1); see generally Freeman v. State, 269 Ga. App. 435, 438 (2) (604 SE2d 280) (2004) (rejecting a defendant’s challenge to a trial court’s jury instruction that a victim’s testimony need not be corroborated to support a guilty verdict for aggravated child molestation; charge was correct statement of law, and viewing the jury charge in its entirety, there was no reversible error); Harris v. State, 189 Ga. App. 49 (2) (375 SE2d 122) (1988) (physical precedent only) (rejecting a defendant’s challenge to a trial court’s instructing jury that in a child molestation case the uncorroborated testimony of the victim is alone sufficient to sustain a conviction; the challenged jury instruction was a correct statement of relevant law).

       See generally Blake v. State, 292 Ga. 516, 518 (2) (739 SE2d 319) (2013) (finding no error, much less any plain error, where trial court’s instruction was an accurate statement of the law); Dukes v. State, 290 Ga. 486, 489 (5) (722 SE2d 701) (2012) (same).

        Arrington v. Collins, 290 Ga. 603, 607 (2) (724 SE2d 372) (2012) (citation omitted).

        Corbin v. State, 305 Ga. App. 768, 771 (2) (700 SE2d 868) (2010) (citation and punctuation omitted).

        Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998) (citations and punctuation omitted).

        Asbury v. State, 175 Ga. App. 335, 337 (2) (333 SE2d 194) (1985) (citations and punctuation omitted).

        Tiller v. State, 196 Ga. 508, 510 (13) (26 SE2d 883) (1943) (emphasis supplied); see Scott v. State, 290 Ga. 883, 886 (4) (725 SE2d 305) (2012) (trial court did not plainly err in failing to charge the jury that the state bore the burden of disproving the defendant’s alibi defense beyond a reasonable doubt; considering charge as a whole, trial court completely and correctly instructed the jury on the defendant’s presumption of innocence, the state’s burden of proof beyond a reasonable doubt that the defendant committed the crimes at issue, and the assessment of the credibility of witnesses); Hansen v. State, 205 Ga. App. 604, 607-608 (2) (423 SE2d 273) (1992) (although trial court did not instruct the jury in the ‘language and sequence” urged on appeal, the charge, considered as a whole, was not misleading and clearly apprised jury of state’s burden of proof).

       See generally Parks v. State, 234 Ga. 579, 583-584 (4) (216 SE2d 804) (1975) (no error in failure to charge that accident was an affirmative defense and that the burden was on the defendant to show accident by a preponderance of the evidence; appellate court did not find, from the charge as given, that the jury would be confused or misled to the point that it would apply the reasonable doubt standard to the defendant’s defense).

       See generally Laster v. State, 307 Ga. App. 142-143 (704 SE2d 451) (2010) (no plain error where error enumerated on appeal was that charge to the jury overemphasized the option of finding defendant guilty; charge as a whole properly instructed the jury of its duty to acquit if the state failed to carry its burden of proving guilt beyond a reasonable doubt).

        Coleman, supra at 411 (1) (punctuation and footnote omitted); see Shadron v. State, 275 Ga. 767, 771 (5) (573 SE2d 73) (2002) (rejecting defendant’s “construction ofthe jury instruction [which] would require reading it in disjointed portions, without context”; reaffirming that the jury charge must be viewed “as a whole”); Strozier, supra; Laster, supra; Freeman, supra.

        Coleman, supra.

       See Kelly, supra at 32 (1), n. 2 (advising parties that “the hurdle to establishing plain error is high”).

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

        Scott, supra at 889 (7) (citations and punctuation omitted).

        Karafiat v. State, 290 Ga. App. 15, 18 (3) (658 SE2d 801) (2008) (punctuation and footnote omitted).

        Walker v. Hagins, 290 Ga. 512, 513 (722 SE2d 725) (2012) (citation and punctuation omitted).

       Supra.

       See Scott, supra at 890 (7) (e).

       See generally id. at 889 (7) (a) (citations omitted).


text:
    A13A0651.
    THE STATE v. CARR.
    (744 SE2d 341)
   Branch, Judge.

After a car in which he was a passenger was stopped by Fulton County police officers, Kentavius Carr was arrested and subsequently indicted on a single count of possession of a firearm by a convicted felon. Carr moved to suppress the evidence seized during a police search of the automobile in which he had been riding, arguing that the search resulted from his illegal detention or arrest. The trial court granted that motion, and the State now appeals from that order. We find no error and affirm.

In reviewing a trial court’s ruling on a motion to suppress, “we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.” (Punctuation and footnote omitted.) State v. Able, 321 Ga. App. 632 (742 SE2d 149) (2013). We review de novo, however, the trial court’s application of the law to the facts. Id.

Viewed in the light most favorable to the trial court’s judgment, the record shows that on March 30, 2012, Jhakeva Smith placed a 911 call to report an act of domestic violence committed against her by her boyfriend. Smith, who remained on the phone with dispatch as she waited for police, gave the 911 operator a description of the suspect and the clothes he was wearing. Officers Lance Wood and Tracy Marks of the Fulton County Police Department responded to the call. As the officers pulled into the apartment complex where Smith lived, dispatch informed them that the victim had reported the suspect was riding in a blue Impala. The officers saw a blue Impala driving toward them and, based on the information they had just received, they stopped the vehicle.

There were two men in the Impala, with Carr being the passenger. Wood acknowledged that he had been given a description of the suspect and his clothing, and that neither man in the car “fit the description of the suspect [police] were looking for.” The officers nevertheless asked Carr and the driver of the Impala for their identification, and each man produced a driver’s license. Wood then moved to an area behind the Impala where he ran a check on both licenses; each license eventually returned with no outstanding warrants.

While Wood was running the license check, Marks opened the passenger door of the Impala. When she did so, the driver of the Impala exited the car and fled from the scene. Wood chased the driver but was unable to apprehend him. By the time Wood returned to the Impala, Marks had removed Carr from the automobile, handcuffed him, and placed him in the back of the patrol car. Marks informed Wood that she had found two guns in the Impala, one in the pocket on the driver’s door and one in the pocket on the passenger’s door. The officers ran the identification numbers on the weapons and learned that the gun found on the passenger side of the car was stolen. At that point, Carr was formally placed under arrest for theft by receiving.

Smith, who witnessed the encounter between Carr and the police, testified at the motion to suppress hearing. She stated that she was outside in the parking lot of the apartment complex during the time she was on the phone with 911. She saw the blue Impala, thought her boyfriend had gotten into the vehicle, and reported that fact to the 911 operator. Shortly thereafter, however, the blue Impala pulled up next to Smith and she saw that her boyfriend was not in the car. According to Smith, she also relayed this information to dispatch.

Smith saw the police arrive at the apartment complex and stop the Impala, and she went to the scene of the traffic stop. Smith testified that as soon as the driver fled the scene with Wood in pursuit, Marks drew her gun, pulled Carr out of the Impala and onto the ground, telling him she would shoot him in the head if he moved. The officer then handcuffed Carr and placed him in the back of the patrol vehicle. According to Smith, Marks seized the guns from the Impala after she had removed Carr from the vehicle. Smith also testified that she tried to tell the police that the suspect was not in the Impala, but the officers “didn’t want to talk.” The officers never took a statement from Smith, and she had to place a second 911 call to file a police report with respect to the domestic violence incident.

Following the hearing, the trial court granted Carr’s motion to suppress the evidence seized during the police search of the Impala. The court found that the officers had a reasonable basis to stop the automobile and conduct a brief investigative inquiry. Noting that Carr did not match the description of the suspect and had cooperated fully with police, and that there were no outstanding warrants on him, the court further found that police unjustifiably escalated their encounter with Carr into an unconstitutional arrest. The State now appeals from that ruling.

In its brief, the State argues that the trial court erred in finding that Marks’s conduct with respect to Carr constituted an unlawful arrest, because Marks was acting in the interest of officer safety and, given the circumstances, her conduct was reasonable. This argument is without merit.

It is well established that police officers may conduct a brief stop of a vehicle and its occupants for the purpose of investigating suspected criminal activity, provided that the officers’ suspicions are based on specific information. See Taylor v. State, 296 Ga. App. 481, 482-483 (675 SE2d 504) (2009). Such a stop must be limited in time to that which is reasonably necessary to investigate the allegation that led to the stop, Bennett v. State, 285 Ga. App. 796, 798 (648 SE2d 126) (2007), and a detention that exceeds that time constitutes a de facto arrest. Grandberry v. State, 289 Ga. App. 534, 539 (2) (658 SE2d 161) (2008). Similarly, an investigatory stop escalates into a de facto arrest whenever the person stopped is “restrained to a degree associated with a formal arrest....” (Citation and punctuation omitted.) Suluki v. State, 302 Ga. App. 735, 738 (1) (691 SE2d 626) (2010). For such an arrest to be constitutional, it must be based on probable cause, i.e., police must possess knowledge of objective facts and circumstances that would lead a reasonable officer to believe that the suspect has committed or is committing a crime. Minor v. State, 298 Ga. App. 391, 396 (1) (b) (680 SE2d 459) (2009).

On appeal, neither party disputes that, based upon the information available to them, the police were justified in stopping the Impala and questioning its occupants. Given this fact, the State points to our case law holding that during an investigatory traffic stop officers may take reasonable steps to ensure their own safety. See Rogue v. State, 311 Ga. App. 421, 423-424 (715 SE2d 814) (2011) (to protect himself, an officer may frisk the occupant of an automobile that is the subject of an investigatory stop, provided he has a reasonable belief “that the person ... is armed and dangerous”) (punctuation and footnote omitted); Gray v. State, 296 Ga. App. 878, 880 (1) (676 SE2d 36) (2009) (“in sufficiently dangerous circumstances, officers may handcuff a suspect as part of an investigatory detention without transforming the detention into a de facto arrest”) (citation omitted). The State argues that by handcuffing Carr, Marks was acting only to protect officer safety and that this conduct must therefore be viewed as part of the constitutional investigatory stop, rather than an arrest. We disagree.

First, we note that even assuming the State’s argument about the officers’ safety had merit in this case, it does not address the subject of the motion to suppress, which was the illegal search of the Impala. Marks’s concerns for her safety should have dissipated once she had Carr handcuffed and in the back of the patrol vehicle. In other words, we fail to see how her subsequent search of the Impala, during which she found the weapon at issue, was motivated by concern for officer safety.

Due to Marks’s failure to testify, however, there is no evidence in the record that she had concern for her safety. Accordingly, we find that, under the circumstances of this case and the evidence contained in the record, Marks’s decision to place Carr in handcuffs resulted in an unconstitutional seizure of his person. When analyzing whether a defendant has been seized in violation of the Fourth Amendment, “the touchstone of our inquiry is the reasonableness of the officer’s conduct, which is measured in objective terms by examining the totality of the circumstances.” (Footnote omitted.) Young v. State, 310 Ga. App. 270, 273 (712 SE2d 652) (2011). See also Bennett, supra. Thus, in Gray, supra, we held that police acted reasonably in handcuffing a suspect whom they were investigating as the likely perpetrator of an armed robbery. Id. at 880 (1). The information known to the police at the time they encountered the suspect included the fact that footprints led from the crime scene to the suspect’s home; the suspect met the physical description of the perpetrator; and “the armed robbery had been an extremely violent one in which the victim had been threatened and beaten badly with a firearm.” Id. We concluded that “fujnder these circumstances, the means of the detention employed by the officers were reasonable and did not transform the investigatory detention into an arrest.” Id. Similarly, in Jackson v. State, 236 Ga. App. 492 (512 SE2d 24) (1999), we held that an officer’s decision to handcuff an armed robbery suspect, who was detained for questioning following a traffic stop, was reasonable under the circumstances. We explained:

Jackson was a suspect in three armed robberies and was believed to be “extremely violent,” and [the officer] knew that the suspect “was going in shooting through the ceiling at people.” Given these facts, we find [the officer’s] actions in handcuffing Jackson for safety purposes “reasonable under the circumstances, and therefore lawful as part of the investigatory stop.”

(Citation omitted; emphasis supplied.) Id. at 495 (2).

Unlike the officers in Gray and Jackson, Marks did not testify at the motion to suppress hearing and we therefore have no testimony as to her motives in restraining Carr. And the evidence that was presented failed to demonstrate that either Wood or Marks had a reasonable basis for believing that Carr was armed, dangerous, or otherwise a threat to the officers’ personal safety. There was no report that the perpetrator in the domestic violence incident was armed; Carr had cooperated fully with police; and Carr had no outstanding warrants. Moreover, Carr did not match the description of the suspect given to police, and the citizen who had telephoned for police assistance was on the scene attempting to tell officers that neither of the men in the Impala was her assailant. Given the evidence, we cannot say that the trial court erred in holding that Marks’s decision to remove Carr from the Impala forcibly, handcuff him, and place him in the patrol car escalated the investigatory stop into a custodial arrest. See Suluki, supra (holding that officers seeking to question an individual in conjunction with a murder investigation effected an unconstitutional arrest, rather than an investigatory detention, when they seized the man, placed him face down on the ground, and handcuffed him before questioning him; “it is the reasonable belief of an ordinary person under such circumstances, and not the subjective belief or intent of the officer, that determines whether an arrest has been effected”) (citation and punctuation omitted). And because there is insufficient evidence to establish that the officers had probable cause to arrest Carr, the arrest and, therefore, the search of the Impala incident to that arrest were unconstitutional. Accordingly, the trial court did not err in granting the motion to suppress. See Minor, supra at 396 (1) (b) (“[t]he existence of probable cause must be measured by current knowledge, i.e., at the moment the arrest is made and not in hindsight”) (citation and punctuation omitted).

Decided June 4, 2013.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellant.

Melissa Michel, for appellee.

Judgment affirmed.

Ellington, C. J., and Phipps, P. J., concur.

       OCGA § 16-11-131.

       Wood testified at the motion to suppress hearing; Marks did not.

       There are three tiers of police-citizen encounters .... First-tier encounters are consensual communications between police and citizens and involve no coercion or detention; second-tier encounters, which must he supported by reasonable suspicion, are brief stops done for the purpose of investigating suspected criminal activity; and third-tier encounters are actual or de facto arrests and, accordingly, must be supported by probable cause.
      (Citations omitted.) Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009).


author: DOYLE, Presiding Judge.

text:
    A13A0613.
    A13A0616, A13A0617.
    COFFEE IRON WORKS v. QORE, INC. SPIVEY v. QORE, INC. (two cases).
    (744 SE2d 114)
   DOYLE, Presiding Judge.

Plaintiffs Coffee Iron Works (“Coffee”), Floriece Spivey, and Ronnie Spivey appeal from the grant of summary judgment to defendant QORE, Inc., in the plaintiffs’ suits against QORE for damages allegedly caused by erroneous analytical work done by QORE for the Georgia Department of Transportation (“DOT”). The plaintiffs each filed similar lawsuits based on the same set of facts, and they appeal from orders entered on similar grounds, so we have consolidated their appeals for review. For the reasons that follow, we affirm in each case.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The three cases share the same factual background. In the late 1990s, the DOT contracted with Douglas Asphalt Company to perform highway paving on a section of 1-95. By 2003, an alleged defect in the paving emerged, so the DOT hired QORE to perform certain materials testing specified by the DOT on samples taken from the Douglas Asphalt work. The tests were done to determine the amount of hydrated lime in the asphalt. QORE performed the testing, but according to the plaintiffs, the work was not scientifically valid, and it produced inaccurate results that led the DOT to place Douglas Asphalt into default with respect to several contracts for highway work. Douglas Asphalt also allegedly lost other contracts because of the test results.

The DOT presented a claim to the bonding company providing a surety for Douglas Asphalt’s highway work. The bonding company prevailed, but the plaintiffs alleged that the DOT’s litigation caused the bonding company to expend $3,000,000 in legal fees, which Douglas Asphalt became responsible for under an indemnity agreement. In a separate case, Douglas Asphalt sued QORE in federal court, challenging the validity of the testing and arguing that QORE’s negligent testing caused the DOT to default Douglas Asphalt. The district court granted summary judgment to QORE, and the judgment was affirmed on appeal by the Eleventh Circuit Court of Appeals.

The plaintiffs in the present case also sued QORE, seeking damages based on the testing done by QORE, which allegedly caused the DOT to default Douglas Asphalt and stop awarding contracts to it. Ronnie Spivey and Coffee were guarantors of the Douglas Asphalt surety bond and allegedly suffered financial damage as a result of the DOT’s claims. Floriece Spivey, a Douglas Asphalt shareholder, alleged that she was damaged by the loss of work awarded to Douglas Asphalt, which ultimately led to its demise. After discovery in each case, the trial court entered orders granting QORE’s summary judgment motions against all three plaintiffs. Coffee appeals in Case No. A13A0613, Floriece appeals in Case No. A13A0616, and Ronnie appeals in Case No. A13A0617.

Case No. A13A0613

1. In each case, the trial court ruled that the claims were barred by res judicata based on the federal litigation. “Although we conclude the trial court erred [by] granting summary judgment based on res judicata, the trial court’s rulings support the grant of summary judgment based on the closely-related doctrine of collateral estoppel.” Accordingly, we affirm under the right for any reason rule.

The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.
On the other hand, the related doctrine of collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim

(a) Identity of claims or issues. The prior litigation, Douglas Asphalt’s federal suit against QORE, involved a nearly identical theory of liability, i.e., that QORE negligently performed the material testing in an unscientific manner, which caused the DOT to improperly reject the work done by Douglas Asphalt and declare it in default under the contract for highway work. Under that theory, if QORE had done the testing properly, the DOT would not have found fault with Douglas Asphalt’s work. The district court in that case characterized this cause of action as an ordinary negligence claim. But in this case, the complaints allege professional negligence, supported by affidavits attached pursuant to OCGA § 9-11-9.1 and OCGA § 24-9-67.1 (2010). Therefore, because this cause of action is not identical to the one in the federal litigation, the res judicata bar, strictly speaking, does not attach.

Nevertheless, the issues decided by the district court and affirmed on appeal are identical to the issues presented in this case. In the federal case,

Douglas [Asphalt] asserted that QORE . . . “negligently developed and/or utilized the [particular materials] tests to purportedly determine the amount of hydrated lime contained in the asphalt used for the 1-95 project.” It maintained that [QORE] “should have known that the tests were inaccurate and provided unreliable results,” and thus [was] liable for any harm that Douglas [Asphalt] suffered when [QORE] provided them to GDOT without any appropriate warnings to qualify them.

This argument was rejected on appeal, when the Eleventh Circuit ruled that QORE had no duty to Douglas Asphalt.

Here, Coffee alleged that QORE breached its duty to properly perform the materials testing or qualify the results reported to the DOT, and this caused Coffee damage as a result of the harm to Douglas Asphalt. The underlying issue, the existence of QORE’s duty to avoid harming Douglas Asphalt with inaccurate test results, is the same in both the federal litigation and this litigation. Therefore, there is sufficient identity of issues for purposes of collateral estoppel.

(b) Identity of parties or their privies. Coffee alleges that it was harmed by virtue of its status as a guarantor of surety bonds on Douglas Asphalt’s work. “A party’s insurer stands in the shoes of the insured as to identity of parties or privies.” Based on this principle, we conclude that Coffee’s status as guarantor of the surety bond places it in privity with Douglas Asphalt, who was the plaintiff in the earlier litigation. Thus, there is identity of privies.

(c) Previous adjudication. The federal district court had jurisdiction to resolve the case brought by Douglas Asphalt, and a final determination was made as to the issue of QORE’s duty to Douglas Asphalt. Thus, in light of the unity of issues and privies, the prior litigation bars the re-litigation of this issue in this case. Accordingly, we affirm the trial court’s grant of summary judgment to QORE.

2. Coffee’s remaining enumeration is moot.

Case No. A13A0616

3. In this case, the trial court granted summary judgment to QORE against Floriece Spivey on the same grounds. The above analysis applies, with the only difference being the party, Floriece Spivey. She alleged injury by virtue of her status as a stockholder of Douglas Asphalt. Thus, we must determine whether she is in privity with Douglas Asphalt for purposes of collateral estoppel with respect to the federal litigation.

A privy is generally defined as one who is represented at trial and who is in law so connected with a party to the judgment as to have such an identity of interest that the party to the judgment represented the same legal right.... There is no definition of “privity” which can be automatically applied to all cases involving the doctrines of res judicata and collateral estoppel, since privity depends upon the circumstances. Privity may be established if the party to the first suit represented the interests of the party to the second suit.

Here, it is clear that Floriece’s claim is premised on the liability initially litigated unsuccessfully by Douglas Asphalt, the corporation by which she claims her interest now. Her stated argument only asserts liability to the extent that Douglas Asphalt was wronged, and Douglas Asphalt fully litigated this interest in the federal litigation. Under these circumstances, the trial court correctly found Floriece to be in privity with Douglas Asphalt for purposes of this litigation. Accordingly, for the reasons stated in Case No. A13A0613, we affirm in this case.

Decided June 5, 2013.

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellant.

Smith, Currie & Hancock, Joseph C. Staak, for appellee.

Case No. A13A0617

4. Ronnie Spivey claimed injury by virtue of his status as a guarantor of surety bonds, in a similar position to Coffee in Case No. A13A0613. Therefore, for the reasons stated in Division 1, we affirm the grant of summary judgment to QORE in this case.

Judgments affirmed.

Phipps, P. J., and McFadden, J., concur.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       QORE performed some of these tests and contracted with Applied Technical Services, Inc. (“ATS”) to perform other parts of the testing. ATS was originally a defendant, but it is not part of this appeal.

       See Douglas Asphalt Co. v. QORE, Inc., 657 F3d 1146 (11th Cir. 2011).

        Body of Christ Overcoming Church of God, Inc. v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010).

       See Braley v. City of Forest Park, 286 Ga. 760, 766 (6) (692 SE2d 595) (2010) (affirming grant of summary judgment under the “right for any reason” rule).

       (Citation and punctuation omitted; emphasis supplied.) Body of Christ, 287 Ga. at 486.

       See Douglas Asphalt Co., 657 F3d at 1150, 1156 (III).

        See Body of Christ, 287 Ga. at 487 (“For [the res judicata] doctrine to act as a bar, the cause of action in each suit must be identical.”) (punctuation omitted).

       (Punctuation omitted.) Douglas Asphalt Co., 657 F3d at 1156 (III).

       See id. at 1158 (III).

        Cincinnati Ins. Co. v. MacLeod, 259 Ga. App. 761, 765 (4) (a) (577 SE2d 799) (2003). See also American States Ins. Co. v. Walker, 223 Ga. App. 194, 195 (1) (b) (477 SE2d 360) (1996) (insurer stands in the shoes of the party).

       See Douglas Asphalt Co., 657 F3d at 1159 (IV).

       (Citations and punctuation omitted.) Brown & Williamson Tobacco Corp. v. Gault, 280 Ga. 420, 421-422 (1) (627 SE2d 549) (2006).

       See QOS Networks Ltd. v. Warburg, Pincus & Co., 294 Ga. App. 528, 534 (2) (a) (669 SE2d 536) (2008) (to be in privity “parties need not be identical];] they must be so connected with a party to the previous judgment that the party fully represents the interest of the privy”).


author: Miller, Judge.

text:
    A13A0524.
    STOVER v. THE STATE.
    (744 SE2d 119)
   Miller, Judge.

Following a jury trial, Isiah Stover was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1) (B)) and possession of a drug related object, a digital scale (OCGA § 16-13-32.2 (a)). Stover filed a motion for new trial, which the trial court denied. On appeal, Stover contends that the trial court erred in admitting similar transaction evidence. Discerning no error, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence was that, on February 27, 2007, on Interstate 20 in Douglas County, an officer stopped Stover for a traffic violation. The officer walked to the passenger side of the vehicle and found passenger Cyril Williams staring straight ahead and breathing pretty fast. The officer asked Stover for his driver’s license and noticed that Stover was also breathing very fast and his hands were trembling. Asked if the vehicle were his, Stover replied that it had been rented by his girlfriend, and he produced the rental agreement. After asking Stover to get out of the vehicle and talking to him, the officer received permission to pat Stover down for his protection and found a large wad of cash, later found to be $700, in Stover’s pocket. Even though the officer told Stover he was only going to issue a warning for the traffic violation, Stover became even more nervous. Stover and Williams gave inconsistent explanations of where they had been and where they were going. As the officer was talking to passenger Williams, he noticed a brown sack under the passenger seat and asked Williams what it was. Williams then pushed the sack further under the seat with his foot.

As the officer continued to write the warning ticket, he asked Stover if he could search the vehicle, and Stover gave permission. The officer obtained the brown sack and found a large amount of crack cocaine, a large amount of powder cocaine, and a digital scale. Another officer who had arrived as backup also found a smaller amount of cocaine between the front seats. The cocaine seized weighed 260.90 grams.

Williams testified that Stover picked him up in Birmingham and drove him to Atlanta. During the ride, Stover told Williams his cousin would be meeting them. They met the cousin in a Wal-Mart parking lot and then followed him to an apartment where he obtained drugs and the digital scale which Stover placed into a bag and gave to Williams.

In addition to being involved in the February 2007 incident, co-defendant Williams testified that he was with Stover on February 2, 1999, in an automobile in Birmingham, Alabama. Stover was driving, and Williams was trying to obtain cocaine from Stover. An officer conducted a traffic stop and, when a backup officer arrived, she noticed the first officer remove two bags containing cocaine from the car. Stover pled guilty to unlawful possession of a controlled substance for this incident.

On March 27, 2003, Jefferson County, Alabama officers executed a search warrant on Stover’s residence in Birmingham. During the search, officers found marijuana. The officers also found packaged cocaine in a wall socket and in a television set. Stover told officers that he normally went to Atlanta to pick up his drugs and that his cousin would arrange the deal for him. Stover pled guilty to possession of a controlled substance arising from this search.

In his sole enumeration of error, Stover contends that the trial court erred in allowing into evidence the 2003 incident as a similar transaction. We disagree.

We review the trial court’s decision to admit similar transaction evidence for any abuse of its discretion in doing so, and the trial court’s factual findings as to the similarity of the incidents are reviewed under a clearly erroneous standard. Holloman v. State, 291 Ga. 338, 343 (6) (729 SE2d 344) (2012).

Before evidence of another crime may be admitted as a similar transaction,

the State must show that it seeks to introduce the evidence for an appropriate purpose; that there is sufficient evidence to establish that the accused committed the independent act; and that there is a sufficient connection or similarity between the independent act and the crime charged so that proof of the former tends to prove the latter.

(Citation and punctuation omitted; emphasis supplied.) Gaudlock v. State, 310 Ga. App. 149, 152 (2) (713 SE2d 399) (2011). Cf. Slaughter v. State, 282 Ga. App. 276, 278 (1) (638 SE2d 417) (2006).

Stover argues that five differences between the 2003 and 2007 incidents render admission of the 2003 incident error: (1) different venues, as the 2003 incident occurred in Stover’s home in Birmingham while the 2007 incident occurred in a rental car on a Georgia highway; (2) the contraband was stashed in different places, as he hid the drugs behind a loose wall socket and in a television set in 2003, while in 2007, the drugs were in a brown bag under the seat of the car; (3) the amounts of drugs found were very dissimilar and gave rise to different crimes — the 2003 incident involved mere possession of contraband, while the 2007 incident involved a trafficking amount; (4) different kinds of drugs, marijuana and cocaine in 2003, but only cocaine in 2007; and (5) the parties involved were different because Williams was the passenger under whose seat the drugs were found in 2007.

A prior crime need not be “identical in character to the charged offense if there is a sufficient connection between them.” (Citation and punctuation omitted; emphasis supplied.) Wells v. State, 237 Ga. App. 109, 113 (4) (514 SE2d 245) (1999). “When considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crimes and the crimes in question.” (Citation omitted.) Gaudlock, supra, 310 Ga. App. at 152 (2).

Here, both the 2003 and the 2007 incidents involved the possession and concealment of cocaine. More importantly, during both incidents, Stover described the process by which he obtained his drugs, i.e., he drove to Atlanta to meet his cousin who then arranged to provide him with the drugs. Moreover, we note that, since Stover does not allege error in the admission of the 1999 similar transaction, error, if any, in admission of the 2003 incident would be harmless. See Grimes v. State, 280 Ga. 363, 364-365 (2) (628 SE2d 580) (2006); Bryant v. State, 304 Ga. App. 755, 759 (3) (697 SE2d 860) (2010). Therefore, we find that the trial court did not abuse its discretion in allowing the State to introduce evidence of Stover’s 2003 drug possession. See Farley v. State, 317 Ga. App. 628, 631-633 (2) (732 SE2d 131) (2012) (prior offense admissible where both prior crime and instant offense involved hand-to-hand street level sales).

Decided June 6, 2013.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Williams pled guilty to trafficking in cocaine prior to Stover’s trial.

       Here, following a hearing, the trial court found the 1999 and 2003 incidents “sufficiently similar” for the purpose of showing knowledge and intent.


text:
    A13A0440.
    PIERCE v. THE STATE.
    (743 SE2d 438)
   DOYLE, Presiding Judge.

Cynthia Mack Pierce appeals from her conviction for improperly passing an emergency vehicle in violation of the Spencer Pass Law. Pierce contends (1) that the law is unconstitutionally vague, and (2) that the evidence was insufficient to support the verdict. Because the constitutional challenge was not timely raised, and because the evidence supports the verdict, we affirm.

Construed in favor of the verdict, the evidence shows that an officer was concluding a traffic stop in the center turn lane of a five-lane road. As he walked back to his patrol vehicle, he observed Pierce pass him in an adjacent lane. The officer’s patrol vehicle had its emergency blue lights activated, and the officer observed no traffic that would have prevented Pierce from moving out of the lane adjacent to the officer’s lane. Based on his observation, the officer stopped Pierce and cited her for violating the Spencer Pass Law.

Following a bench trial, Pierce was convicted. She filed a motion for new trial at which she challenged the sufficiency of the evidence and argued that the Spencer Pass Law was unconstitutionally vague. Her motion was denied, giving rise to this appeal.

1. Pierce initially appealed to the Supreme Court of Georgia, invoking its exclusive appellate jurisdiction over novel constitutional questions. But the Supreme Court transferred the case to this Court because Pierce failed to raise her constitutional challenge in the trial court at her first opportunity, and the issue was therefore not properly before the Court on appeal. Pierce made her challenge in her motion for new trial, but

[i]t is well-established that a criminal defendant may not initiate a constitutional attack against a statute in either a motion for a new trial or a motion to arrest the judgment. A constitutional attack on a state statute must be made at the first opportunity, and it is too late to raise such question after a guilty verdict has been returned by the [factfinder].

Because appellant waited until filing her motion for new trial, her challenge must be deemed waived on appeal.

2. Pierce’s challenge on the general grounds fails. When an appellate court reviews the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Decided May 13, 2013

Reconsideration denied June 7, 2013.

David S. Cason, for appellant.

Here, the evidence shows that Pierce passed the officer in a lane adjacent to the officer while he concluded a traffic stop and had his blue emergency lights activated. The officer testified that Pierce had room to move out of the adjacent lane and into a farther lane.

OCGA § 40-6-16 (b), the Spencer Pass Law, provides as follows:

The operator of a motor vehicle approaching a stationary authorized emergency vehicle that is displaying flashing ... blue lights shall approach the authorized emergency vehicle with due caution and shall, absent any other direction by a peace officer, proceed as follows:
(1) Make a lane change into a lane not adjacent to the authorized emergency vehicle if possible in the existing safety and traffic conditions; or
(2) If a lane change under paragraph (1) of this subsection would be impossible, prohibited by law, or unsafe, reduce the speed of the motor vehicle to a reasonable and proper speed for the existing road and traffic conditions, which speed shall be less than the posted speed limit, and be prepared to stop.

Viewed in favor of the verdict, the officer’s testimony supports a finding that it was possible for Pierce to safely make a lane change into a lane not adjacent to the officer before she passed him. Accordingly, this enumeration presents no basis for reversal.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

Rosanna M. Szabo, Solicitor-General, Tad F. Keller, Assistant Solicitor-General, for appellee.

       OCGA § 40-6-16 (a), (b).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       See Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1) (providing that the Supreme Court shall have “exclusive appellate jurisdiction” in “[a]ll cases involving the construction of . . . the Constitution of the State of Georgia or of the United States and all cases in which the constitutionality of a law ... has been drawn in question”). See also City of Decatur v. DeKalb County, 284 Ga. 434, 436-437 (2) (668 SE2d 247) (2008) (explaining that the Supreme Court has interpreted this jurisdictional provision to extend only to constitutional issues that were distinctly ruled on by the trial court and that do not involve the application of unquestioned and unambiguous constitutional provisions or challenges to laws previously held to be constitutional against the same attack).

       (Punctuation and footnotes omitted.) Perez-Castillo v. State, 275 Ga. 124, 125 (562 SE2d 184) (2002). See also Brinkley v. State, 291 Ga. 195, 196 (1) (728 SE2d 598) (2012) (“even constitutional challenges to sentencing statutes ... are untimely if they are presented for the first time in a motion for new trial”).

        See Perez-Castillo, 275 Ga. at 125.

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).


text:
    A13A0686.
    VANN v. THE STATE.
    (742 SE2d 767)
   DOYLE, Presiding Judge.

After a bench trial, Gregory Vann was found guilty of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. The trial court denied his motion for new trial, and he appeals, arguing that his conviction should be reversed because it was based on the uncorroborated testimony of his accomplice. For the reasons that follow, we affirm.

This is the second appearance of this case before this Court. After Vann’s first trial, he appealed, and this Court reversed his convictions based on his claim of ineffective assistance of counsel. Vann was retried, and this appeal followed.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia.[] This same standard applies to our review of the trial court’s denial of [the Defendant’s] motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence shows that Sandra Carter arrived for her job at a fast food restaurant around 7:15 a.m. on August 11, 1999. A man in a ski mask, who was carrying a gun, approached her from nearby shrubs, but she was able to run inside and lock the door behind her. The gunman shot the glass door and gained entry into the building, and when Carter could not open the register quickly, he told her to open the safe, which was concealed as part of the counter area of the store, and when she could not open the safe quickly either, he told her to open the cash box, which was hidden underneath a stack of cup carriers. The gunman, whom she described as about 5'10", 160-170 pounds, with “dark, kind of brownish shade [skin]” that “wasn’t dark, but ... a little on the tannish side,” wearing a dark-colored shirt, dark-colored long pants, and white shoes, took about $150 in bills and rolled coins from the cash box, which currency he put into a dark blue book bag. In court, Carter identified Vann as the individual who robbed her based on his general physical description.

As Vann ran from the store, Carter saw another man, who was slightly taller than the gunman, run across the street and behind another building with Vann towards an area of town known as Benning Hills. She described that second man as being familiar to her and as wearing khaki pants and a multi-striped shirt, and he put his baseball cap over his face when he saw her looking at him. About three-and-a-half hours after the robbery, Antonio Mobley was found walking along the street in the Benning Hills area within a mile of the restaurant, carrying a book bag, which contained a CB&T money bag, rolled coins, and a ski mask. Officers brought the CB&T money bag back to the restaurant, where Carter positively identified it as being the one taken from her earlier. After his arrest, Mobley implicated himself as the lookout in the robbery, and based on his statement to officers, an arrest warrant was issued for Vann, who was later arrested when he was stopped for speeding in Louisiana on April 28, 2000.

In court, Mobley read from his testimony at a previous trial, in which he testified that Vann had approached him about robbing the restaurant, but Mobley was opposed to the robbery because bis girlfriend at the time worked at the restaurant. Mobley testified that Vann brandished the weapon and committed the robbery while he was outside the building, and the men dumped the bag with the proceeds and split up after the robbery. Mobley went back to his house and later returned to the place where the two had put the bag, when he was apprehended by an officer.

Based on the facts above, the trial court, acting as factfinder, found Vann guilty of the charges related to the robbery of the restaurant. Vann’s motion for new trial was denied, and this appeal followed.

In his sole enumeration on appeal, Vann contends that there was insufficient evidence to corroborate Mobley’s accomplice testimony implicating Vann in the robbery to support the guilty verdicts.

[T]he testimony of a single witness is generally enough to establish a fact, unless the witness, like [Mobley], is an accomplice to the crime, in which case such testimony must be corroborated. [] Although a defendant may not be convicted on the uncorroborated testimony of an accomplice, only slight evidence of a defendant’s identity and participation from an extraneous source is required to corroborate the accomplice’s testimony and support the verdict. Sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his . . . participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice. . . . And whether the State presents sufficient corroboration of the accomplice’s testimony is peculiarly a matter for the [factfinder] to determine.

In reviewing the evidence presented at trial, it is clear that Carter’s testimony corroborating Mobley’s accomplice testimony was slight. She admitted on cross-examination that she was not able to positively identify Vann as the robber because the robber had worn the ski mask the entire time and because a number of people in Columbus fit the same physical description as the man who robbed her. Carter also admitted that only an employee or someone affiliated with an employee would have known about the location of the cash box or the safe because both were camouflaged from plain sight, and the individual who robbed her knew of the existence and location of both the cash box and the safe. And Mobley’s girlfriend was also an employee at the restaurant. Furthermore, Carter’s in-court description of the clothing worn by the robber did not match the description she provided to officers on the day of the robbery, which described the gunman as being of a heavier build, with a red and white striped long-sleeved shirt and the second man as having worn an orange and yellow shirt and also wearing a ski mask. Both of these descriptions varied from Mobley’s description of Vann’s clothing, which consisted of shorts, which he thought were green, and brown shoes.

Decided May 23, 2013

Reconsideration denied June 7, 2013.

Raymond B. Lakes III, for appellant.

Julia Fessenden Slater, District Attorney, LaRaeD. Moore, Assistant District Attorney, for appellee.

Nevertheless, Carter did identify Vann as the robber brandishing the weapon based on his build and skin tone. Vann’s attorney thoroughly cross-examined Carter and illuminated the weaknesses in her testimony, including the fact that her identification was based on the defendant’s build, which was similar to any number of other people in the area. Vann’s attorney also emphasized to the factfinder the weaknesses in the theory of the case presented by the State, including the fact that Mobley was the only individual connected to the robbery in any way, his possession of the stolen items, his presence in the Benning Hills area after the crime, and his girlfriend’s connection to the restaurant and its logical inference that he would have knowledge of the locations of the hidden safe and cash box. These weaknesses, however, relate to the credibility and weight of the evidence, which were matters for the factfinder. Accordingly, the trial court did not err by denying Vann’s motion for new trial on this issue.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-11-131 (b).

       Vann was acquitted of charges related to another armed robbery that occurred prior to the incident from which the instant charges stem.

       See Vann v. State, 266 Ga. App. 238 (596 SE2d 722) (2004).

       443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       (Footnotes omitted.) Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

       See OCGA § 24-14-8, formerly OCGA § 24-4-8.

       (Citations and punctuation omitted.) Hines v. State, 320 Ga. App. 854, 857(1) (740 SE2d 786) (2013).

       See Gilmore v. State, 315 Ga. App. 85, 91-92 (1) (d) (726 SE2d 584) (2012) (“If the verdict is founded on slight evidence of corroboration connecting a defendant with the crime, the verdict is legally sufficient.”).

       Compare with Hill v. State, 236 Ga. 831, 833 (225 SE2d 281) (1976) (reversing conviction for lack of corroborating evidence because “[n]o one... identified appellant, by size, race, voice, mannerisms, appearance or otherwise, as a participant in the crimes other than the alleged accomplice. . .”) (emphasis supplied).

       See Hines, 320 Ga. App. at 857 (1) (a). Compare with Gilmore, 315 Ga. App. at 91 (1).