Fоllowing a jury trial, Kevin Broyard was convicted of armed robbery (OCGA § 16-8-41 (a)), two counts of aggravated assault (OCGA § 16-5-21 (a)), possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b) (1)), and fleeing or attempting to elude an officer (OCGA § 40-6-395 (a)). Broyard appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to sustain his convictions and (2) the trial court erred in failing to sever his trial from that of his co-defendant. For the reasons set forth below, we vacate Broyard’s conviction on one of the aggravated assault counts and remаnd this case for resentencing.
Viewed in the light most favorable to the jury’s verdict,
When the cashier told Welch that the manager had the key to the cash drawer, Welch asked “[w]here’s the manager?” Welch waved the gun at thе cashier and told her to slide over. The cashier then got down on the floor and crawled on her knees to the back of the restaurant. When the cashier got to the back, other employees opened up the drive-through window. The cashier, the back line cook and other employees then crawled through the window and ran to a McDonald’s where one of the employees called 911.
Meanwhile, the assistant manager, who was working the night shift, saw Welch enter the restaurant while the manager was helping a customer. When the cashiеr alerted the manager, he turned around and saw Welch in the green hat holding the pistol. Welch pointed the pistol at the manager’s face, and told the manager to open the cash register and empty it. While the manager was getting the key, Welch hit the manager over thе head with the pistol and told the manager to hurry up (Count 2).
When the manager opened the cash drawer, Welch grabbed the drawer, took the money and hopped over the counter (Count 1). Welch then went to the drive-through area, pushed the manual button on the drive-through registеr, took the money in that drawer and hopped back over the counter. Welch removed more than $700 from the restaurant’s cash drawers and put the money in the blue and black bag. Welch then left the restaurant and got into the truck with Broyard, who drove out of the parking lot down Panola Road to Flakes Mill Road.
A police sergeant, who was also in the area that night, heard the radio dispatch about the Burger King robbery. The sergeant headed toward Flakes Mill Road. When he stopped at the intersection оf Amsler Road and Flakes Mill Road, a red Ford pickup truck passed by him. The sergeant pulled behind the truck and called in the tag number. The driver then hit the gas, turned left and went up a hill. At the top of the hill the road ended in a gravel driveway that went into the woods.
When the sergeant stoppеd behind the truck, Broyard and Welch jumped out, turned around and looked at the sergeant. Broyard and Welch then ran down the gravel driveway, and the sergeant followed them and yelled at them to stop. When Broyard stopped, the sergeant ordered him to the ground and handcuffed him. The sergeant called dispatch on his phone, and when other officers arrived on the scene, they took Broyard into custody. The sergeant then returned to the truck, which was still running. The doors of the truck were closed, so the sergeant looked through the windows and saw some clоthes on the front seat, a blue bag and what looked like the butt of a handgun in the open glove compartment.
The crime scene technician who processed the red pickup truck, found the blue and black b ag containing $749 in cash, the gun and two cell phones. Subsequent invеstigation also revealed that the cell phone found on the driver’s side belonged to Broyard.
1. Broyard contends that the evidence was insufficient as a matter of law to support his convictions.
(a) Fleeing or attempting to elude an officer.
With regard to the crime of feeling or attempting to elude a pursuing poliсe vehicle,
the relevant statute, OCGA § 40-6-395 (a), provides: [a]ny driver of a vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police vehicle when given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a misdemeanor.
(Citations and punctuation omitted.) Westmoreland v. State,
Here, Broyard admitted that, after he and Welch left the Burger King, he “started freaking out” because he heard sirens, Welch had a gun and Welch told him that he had “just robbed the place[.]” Broyard also “hit the gas” when the sergeant pulled behind his truck, and he admittedly jumрed out of the truck and ran from the sergeant, even though the sergeant repeatedly ordered him to stop. Accordingly, the evidence was sufficient to support Broyard’s misdemeanor conviction, as the driver of the vehicle, for fleeing an officer. See Dixson v. State,
.(b) Armed robbеry, aggravated assault and possession of a firearm during the commission of a felony.
Aperson commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use оf an offensive weapon. OCGA § 16-8-41 (a).
A person commits the offensе of possession of a firearm during the commission of a felony when he has on or within arm’s reach of his person a firearm during an armed robbery. See OCGA § 16-11-106 (b) (1). “Where a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commissionofacrimearespecificallyauthorizedbyOCGA § 16-11-106 (e).” (Citations and punctuation omitted.) Howze v. State,
[a] defendant is a party to a crime if he intentionally aids or abets the commission of the crime, or advises, encourages, hires, counsels, or procures another to commit it. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Further, where a getaway driver waited for his co-defеndant to return to the car, the driver was also guilty of his co-defendant’s crimes.
(Citations and punctuation omitted.) Johnson v. State,
Where a party has committed armed robbery and possession of a firearm during commission of a felony, an accomplice who is concerned in the commission of those crimes under OCGA § 16-2-20 is likewisе guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm.
(Citation and punctuation omitted.) Bryson v. State,
Essentially, under the facts of this case, the law allows Broyard to be charged with and convicted of the same offenses as his co-defendant Welch. Notably, the evidence showed that Broyard drove Welch to the Burger King on the night of the crimes, he waited as the getaway driver for Welch to return, and he and Welch fled from the scene in his truck after the robbery. Proof of Broyard’s direct commission of the crimes was not required beсause the jury could infer his participation in the crimes from his conduct before, during and after the crimes. See Washington v. State,
(c) Merger of Broyard’s convictions for armed robbery and aggravated assault of the manager.
Merger is one area of law where, even if the defendant did not raise it on appeal, the Supreme Court of Georgia and this Court may still consider these issues and vacate convictions and sentences. Nazario v. State,
Here, Broyard was indicted for and convicted of armed robbery (Count 1) as a party to Welch’s actions in taking Burger King’s money while in the immediate presence of the manager by use of a gun. Although Broyard’s indictment for aggravated assault (Count 2) alleged that the crime was committed by the act of striking the manager about the head with the gun, the evidence as set forth above clearly shows that the armed robbery began when Welch pointed the gun at the manager and demanded cash from the register. Welch hit the manager on the head with the gun when the manager did not immediately comply with his demand to give him the cash. Because the aggravated assault
2. Broyard also contends that the triаl court erred in failing to sever his trial from Welch’s. We discern no error.
As a preliminary matter, although Broyard argued at his motion for new trial hearing that he requested severance some time before the trial started, the record reveals that no motion was filed. Welch, not Brоyard, raised the issue of severance at trial. Accordingly, Broyard has waived any error. See Allen v. State,
The decision whether to grant a severance lies within the discretion of the trial court. OCGA § 17-8-4 (a); Mapp v. State,
In еxercising its discretion, the trial court must consider the following factors: (1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights.
(Citations and punctuation omitted.) Jones v. State,
In this case, Broyard has failed to show that the evidence may have been confusing to the jurors, especially sinсe there were only two co-defendants involved in the case. See Jones, supra,
In sum, we affirm Broyard’s convictions for armed robbery, fleeing or attempting to elude an officer and possession of a firearm during the commission of a crime. We also affirm his convictions for aggravated assault against the cashier (Count 3). We vacate Broyard’s conviction for aggravated assault against the manager (Count 2), and remand this cаse for resentencing.
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Notes
Jackson v. Virginia,
The investigation revealed that the cell phone found on the passenger side of the truck belonged to Welch.