336 Ga. App. 223
Ga. Ct. App.2016Background
- Late May 21, 2013: three men (including Devante Bynes) confronted and robbed one man in a park at gunpoint; they then robbed a second victim nearby.
- An unmarked patrol car witnessed the robbery; officers pursued and detained two codefendants; a police dog tracked Bynes to a crawl space.
- The canine bit Bynes; before a stop command, Bynes put his hands around the dog’s neck and choked it until it lost consciousness; the dog was treated and recovered.
- Police recovered victims’ property and a black pistol near the scene; victims and an officer identified Bynes as a participant.
- Indictments: two counts of armed robbery; counts of obstruction (directed verdict for State) and harming a police dog (jury convicted); escape nolle prossed. Sentence: two concurrent life terms for armed robbery and five years concurrent for harming the police dog.
- On appeal Bynes challenged sufficiency of the evidence for both armed robbery and harming a police dog, requested jury charges on self-defense for the dog charge and on theft-by-intimidation as a lesser included offense of armed robbery; court also sua sponte reviewed sentencing legality for the dog charge.
Issues
| Issue | Plaintiff's Argument (Bynes) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Sufficiency — armed robbery | Inconsistencies/credibility issues render evidence insufficient | Victim testimony, officer observations, flight, and recovery of property support convictions | Conviction affirmed; evidence sufficient for armed robbery |
| Sufficiency — harming police dog | Did not know dog was a police dog; injury not "serious" | He was fleeing arrest, officer ordered him to stop, he choked the dog until it lost consciousness — jury could find knowing, intentional, serious injury | Conviction affirmed for harming a law-enforcement animal (jury could find serious injury) |
| Jury charge — self-defense for harming dog | Claimed involuntary reaction to being bitten; requested charge on justified use of force | Defendant was fleeing after committing a felony; no right to resist lawful arrest — self-defense unavailable | Charge properly refused; no self-defense when resisting arrest after felony |
| Lesser included — theft by intimidation vs. armed robbery | Requested instruction that robbery might have been by intimidation without weapon | State presented evidence of gun use; no evidence the offenses were committed without an offensive weapon | Trial court properly refused lesser-included instruction |
| Sentence legality for dog charge | (Not raised by Bynes) Sentence imposed exceeded statutory maximum for the charged degree | Indictment charged causing "serious" injury (misdemeanor); court sentenced as if felony (debilitating injury) | Five-year sentence vacated; remanded for resentencing under correct statutory degree (misdemeanor) |
Key Cases Cited
- Reese v. State, 270 Ga. App. 522 (view evidence in light most favorable to verdict)
- Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency review)
- Hogan v. State, 330 Ga. App. 596 (victim testimony sufficient for armed robbery)
- Drake v. State, 266 Ga. App. 463 (flight and conduct before/after support aiding/abetting)
- Sims v. State, 296 Ga. App. 461 (hands/fists may be deadly weapons; jury decides serious injury)
- Mayfield v. State, 276 Ga. App. 544 (no self-defense charge when resisting lawful arrest after felony)
- Smith v. State, 252 Ga. App. 552 (no lesser-included instruction where all evidence establishes greater offense)
- Crumbley v. State, 261 Ga. 610 (sentence void if punishment not authorized by law)
- von Thomas v. State, 293 Ga. 569 (courts may correct void sentences even if not raised below)
- Hulett v. State, 296 Ga. 49 (appellate review may correct illegal sentences)