Following a jury trial, Julius Bryson was convicted of two counts of armed robbery (OCGA § 16-8-41 (a)) and two counts of possession of a firearm during the commission of a felony (OCGA § 16-11-106 (b)). Bryson filed a motion for new trial, which the trial court denied. Bryson appeals, contending that (1) the evidence was insufficient to sustain his convictions. Bryson further contends that the trial court erred (2) in giving the “level of certainty” jury charge; (3) in admitting evidence that he was speeding and had no driver’s license; (4) in failing to direct a verdict or give a lesser included jury charge on robbery by intimidation as to the second count of armed robbery; (5) in failing to direct a verdict of acquittal as to the second count of possession of a firearm; (6) in admitting witness opinion testimony identifying him in a videotape; (7) in allowing the prosecutor to engage in an impermissibly suggestive in-court identification procedure; and (8) in allowing the prosecutor to engage in improper burden-shifting questioning at trial. In addition, Bryson argues that (9) his trial counsel provided ineffective assistance. For the reasons that follow, we affirm.
On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. As an appellate court, we do not weigh the evidence, judge the credibility of witnesses [,] or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.
(Citation, punctuation and footnotes omitted.) Brinson v. State,
So viewed, the evidence showed that on the afternoon of April 12, 2003, a custodian was working at a rest area on Interstate 75 in Turner County when she observed a white car occupied by three black males back into a parking space at the rest area. One of the males was wearing a black bandana on his head; another wore a hood. The custodian testified that she was able to see the males’ faces at that time.
On that same afternoon, the first victim stopped at the rest area and went into the men’s restroom. Upon entering the restroom, the
While the armed robbery of the first victim was still in progress, a second victim entered the restroom. The perpetrators then turned to commit an armed robbery of the second victim. The second victim testified that the perpetrator approached him from behind, demanded his wallet, and said that the accomplice “has a gun and he’ll kill you.” The second victim gave the perpetrators his wallet and cash in the amount of $610.
The first victim rushed out of the restroom and told the custodian to call 911 to report the armed robbery incidents. The second victim, his wife, and the custodian observed the perpetrators flee from the rest area in the white car that had been backed into a parking space at the rest area. The second victim and his wife described that the white car had a cracked windshield. Both victims described that one of the perpetrators was tall and was wearing a hood and a black bandana. The second perpetrator who had brandished the gun was described as being shorter, young, and wearing a white jersey.
Local law enforcement officers received a “[b]e on the lookout” radio report with the descriptions of the white car and the perpetrators. Almost immediately after receiving the radio report, an officer observed the car, matching the descriptions and traveling at a high rate of speed on the interstate. The officer tracked the car’s speed and reported that the car was going 102 miles per hour in a 65 mile per hour zone. The officer pursued the car, activating the blue lights and siren of his patrol car in efforts to initiate a stop. The perpetrators did not stop the car, and instead led the officer on a high speed chase. Several other officers joined the chase, and eventually stopped the car by blowing out its tires. Bryson, who was the driver, then bailed from the car and led the officers on a foot chase. Bryson was captured and taken into police custody.
Bryson’s accomplices were also apprehended at the end of the chase. After the perpetrators were apprehended, the officers searched the car and recovered the second victim’s driver’s license, along with the clothing and bandana that the perpetrators had worn during the commission of the crimes. The officers also recovered the second
During the course of their investigation, the officers compiled a photographic lineup. The custodian identified Bryson as being one of the perpetrators in the lineup. The custodian also made an in-court identification of Bryson at trial.
At the conclusion of the trial, the jury entered a verdict finding Bryson guilty of the charged offenses.
1. Bryson challenges the sufficiency of the evidence to sustain his convictions. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the evidence was sufficient to establish Bryson’s guilt as a party to the crimes.
“A person 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 of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). A person commits the offense 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). “Where a robbery is committedby the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e).” (Citations and punctuation omitted.) Howze v. State,
[Wjhere 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 likewise guilty of both offenses, notwithstanding the fact that the accomplice did not have actual possession of the firearm.
Howze, supra,
[w]hile mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and*515 after the offense are circumstances from which one’s participation in the criminal intent may be inferred.
(Citation and punctuation omitted.) Olds v. State,
Here, the trial evidence set forth above showed that Bryson either directly committed or was a party to the armed robberies of both victims at the rest area. The custodian who was present at the scene identified Bryson as one of the perpetrators who had participated in the crimes. Bryson’s flight from the rest area, flight from the officers, act of driving the getaway car, and possession of the second victim’s driver’s license and clothing items that witnesses linked to the crimes presented additional circumstances from which the jury could infer his guilt as a party to the crimes. See Woodruff v. State,
Bryson nevertheless argues that the armed robbery and firearm charges involving the second victim cannot be upheld since the second victim testified that he did not actually see a gun during the robbery. Contrary to Bryson’s arguments, however,
[circumstantial evidence is sufficient to establish the use of a weapon or device appearing to be a weapon, and a conviction for armed robbery may be sustained even though the weapon or article used was neither seen nor accurately described by the victim. The victim need not see the weapon, so long as he or she had a reasonable apprehension that an offensive weapon was used.
(Punctuation and footnotes omitted.) Marlin v. State,
We likewise discern no merit in Bryson’s argument that the evidence failed to exclude every other reasonable hypothesis save that of his guilt. See OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”). Under this principle,
the question whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law. The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind. Moreover, in every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury.
(Citations and punctuation omitted.) McGuire v. State,
2. Citing Brodes v. State,
Notably, however, “the giving of such an instruction does not require reversal when there is other significant evidence corroborating the eyewitness identification.” (Citation and punctuation omitted.) McKenzie v. State,
3. Bryson also argues that the trial court erred in overruling his objections to evidence that he was speeding and had no driver’s license. He contends that this evidence impermissibly placed his character in issue. Again, no reversible error has been shown.
“ The State is entitled to present evidence of the entire res gestae of a crime [,] even if the defendant’s character is incidentally placed in issue.” (Citations and punctuation omitted.) Bertholf v. State,
4. Bryson’s remaining claims of trial court error pertain to matters that were not presented or objected to at trial. Specifically, although Bryson contends that the trial court erred in failing to grant directed verdicts on the armed robbery and possession of a firearm charges pertaining to the second victim, the record fails to show that trial counsel requested such relief at trial. Since Bryson made no motion for a directed verdict of acquittal, the trial court did not err by failing to direct a verdict sua sponte. See McCord v. State,
Nevertheless, since Bryson argues that his trial counsel was ineffective in failing to raise these issues, we shall review his contentions of error in the context of his ineffective assistance of counsel claims in Division 5 below.
In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington,466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. As the appellate court, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts [in a de novo review].
(Citations and punctuation omitted.) Willis, supra,
(a) Bryson first claims that trial counsel erred in failing to move for a directed verdict on the armed robbery and firearm charges pertaining to the second victim.
Our standard of review for the denial of a motion for a directed verdict of acquittal is the same as our standard for reviewing the sufficiency of the evidence to support a conviction. Where the evidence establishes the essential elements of the offense charged, a directed verdict of acquittal is unauthorized.
(Citations and punctuation omitted.) Amaechi v. State,
(b) Nor do we find reversible error in trial counsel’s failure to request a jury charge on robbery by intimidation as a lesser included charge to the armed robbery offense. It is true that robbery by intimidation is a lesser included offense of armed robbery. See OCGA § 16-8-41 (a). Nevertheless, “[wjhere the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offense of robbery by intimidation.” (Punctuation and footnote omit-, ted.) Brinson, supra,
(c) Bryson also argues that his trial counsel erred in failing to object to the officer’s opinion testimony identifying him in a store security videotape.
During the course of their investigation, the officers obtained a store security videotape that allegedly depicted Bryson on the afternoon of the incident. The officer identified Bryson in the videotape, and described his actions as he entered the driver’s side of the white car. We agree that the officer’s testimony identifying Bryson as the person depicted in the videotape was erroneous.
It [is] improper to allow a witness to testify as to the identity of a person in a video or photograph when such opinion evidence tends only to establish a fact which average jurors could decide thinking for themselves and drawing their own conclusions. There was no evidence offered here that [Bryson’s] appearance had changed by the time of trial or that he exhibited some characteristic that made [the officer] more likely to identify him correctly than the members of the jury.
(Punctuation and footnotes omitted.) Mitchell v. State,
Bryson, however, has failed to show that he was prejudiced by this error. Significantly, Bryson’s identification as one of the perpetrators did not rest upon the videotape identification. Rather, the
(d) Bryson contends that trial counsel erred in failing to object to the prosecutor’s impermissibly suggestive identification procedure at trial.
During the prosecutor’s examination, the custodian was asked whether she could identify the perpetrator whom she had observed on the date of the incident. In response, the custodian pointed to Bryson in making her in-court identification. To clarify that Bryson was the individual whom the custodian had pointed to, the prosecutor held his hand over Bryson’s head, asking, “Is that the one you’re talking about?” The custodian responded affirmatively.
At the motion for new trial hearing, trial counsel agreed that the custodian had already made the in-court identification of Bryson by pointing to him at the defense table prior to the prosecutor’s action. The record thus supports the State’s assertion that the prosecutor made the hand gesture merely for the sake of clarifying that the custodian had identified Bryson. Moreover, the custodian had previously identified Bryson as one of the perpetrators in a pretrial photographic lineup, and Bryson has not challenged that pretrial identification. In light of the prior identifications, Bryson’s claim of error regarding the subsequent identification procedure is unavailing. See, e.g., Taylor v. State,
(e) In addition, Bryson claims that trial counsel erred in failing to object to the prosecutor’s allegedly burden-shifting questioning of
Q: Now, I understand that you did not see the man’s face clearly, but I’ll ask you as you look at [Bryson], is there anything about him that would keep [Bryson] from being the individual that robbed you that day?
A: No, sir.
Bryson contends that this line of questioning shifted the burden upon him to prove that he was not the man who robbed the second victim and violated the presumption of innocence. We disagree.
Although the prosecutor’s question was inartfully phrased, it essentially was an inquiry as to whether Bryson fit the physical description of the perpetrator who had committed the crime. The prosecutor’s question did not shift the burden of proof or violate the presumption of innocence as alleged. Moreover, the trial court’s instructions to the jury adequately explained the State’s burden of proof and the presumption of innocence. The trial court also specifically instructed the jury that “the burden never shifts to the defendant to prove that it was not him nor to prove it was some other person.” Pretermitting the impropriety of the question, any error was harmless. Cf. Dupont v. State,
Judgment affirmed.
Notes
We note that Brodes, supra, was decided in 2005, approximately two years after Bryson’s trial. The Brodes ruling nevertheless applies since the instant case was in the “pipeline” at the time of the ruling. See Taylor v. State,