Newsome v. State
324 Ga. App. 665
| Ga. Ct. App. | 2013Background
- Newsome was convicted after a jury trial of multiple offenses including aggravated assault, armed robbery, false imprisonment, burglary, theft by taking, and possession of a firearm during a felony.
- On appeal, Newsome challenges (i) the trial court’s failure to give requested pattern jury instructions on mere presence and mere association.
- Newsome also challenges the trial court’s permission for the jury to rehear portions of Officer Green’s testimony during deliberations.
- Newsome contends that aggravated assault (Count 2) should have merged with armed robbery (Count 3) under OCGA § 16-1-6.
- The State concedes the merger issue; the court vacates the aggravated assault conviction and remands for resentencing, while affirming other judgments.
- Evidence at trial showed intruders assaulted two victims in a Palmetto home, stole cash and belongings, and that a Mitsubishi linked to Newsome contained weapons and stolen items.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by not giving mere presence/association instructions | Newsome argues lack of proof beyond presence/association supports instructions. | Newsome contends evidence tied him to crimes via co-defendant and vehicle | No reversible error; sufficient evidence beyond presence/association. |
| Whether rehearing Officer Green’s testimony was improper | Newsome asserts prejudice from emphasized portions read during deliberations. | State asserts jury-initiated, cautioned, limited rehearing is permissible. | Permissible under discretionary review; no reversible error. |
| Whether aggravated assault conviction should merge with armed robbery | Newsome argues included elements overlap; merger required under Drinkard v. Walker. | State contends separate offenses proven by different elements. | aggravated assault merged into armed robbery; vacate Count 2 and remand for resentencing. |
Key Cases Cited
- Drinkard v. Walker, 281 Ga. 211 (2006) (adopted required-evidence test for included offenses)
- Long v. State, 287 Ga. 886 (2010) (no element of aggravated assault with a deadly weapon not in armed robbery)
- Palmer v. State, 294 Ga. App. 85 (2008) (circumstantial-evidence considerations for linking conduct to crimes)
- Muhammad v. State, 243 Ga. 404 (1979) (mere presence/association not sufficient; requires corroborating evidence)
- Kelley v. State, 279 Ga. App. 187 (2006) (proper jury instructions on the burden and circumstantial evidence)
- Dorsey v. State, 252 Ga. App. 33 (2001) (jury-requested rehearing of testimony permissible with safeguards)
- Mattox v. State, 196 Ga. App. 64 (1990) (mere presence/association as corollary to proving each element)