729 S.E.2d 487 | Ga. Ct. App. | 2012
James Kennedy Copeny, Jr., Jaryn Ware, and Kenneth George Hinton were tried together and each convicted of armed robbery,
1. We turn first to the sufficiency of the evidence. When we consider whether the evidence is sufficient to sustain a conviction, we ask whether any rational jury could have found proof beyond a reasonable doubt of the guilt of the defendant in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to weigh the evidence, pass upon the credibility of witnesses, and resolve conflicts in the evidence. See id. So, if the record contains some competent evidence sufficient to prove beyond a reasonable doubt each element of the crime of which the defendant was convicted, we must uphold the conviction, even if the evidence is contradicted. Id.
Viewed in the light most favorable to the verdict, the evidence in this case shows that the victim met Tinisha Henry when, while
The victim promptly contacted law enforcement, and officers were instructed to be on the lookout for both the Monte Carlo and the Town Car. Officers soon located the Monte Carlo and apprehended Henry. Later, officers also located a Town Car and stopped it. Inside the Town Car, the officers found Copeny, Ware, Hinton, and a fourth man, Malcolm Arnold. The victim was taken to the scene of the stop, and he confirmed that the Town Car that officers had stopped was, in fact, the Town Car in which his assailants had driven away. The victim also viewed the occupants of the Town Car. He was unable to definitively identify any of the occupants as one of his assailants, inasmuch as they had covered their faces during the robbery, but the victim told officers that the height, weight, and attire of the occupants of the Town Car was consistent with that of his assailants. An officer testified at trial that, when the Town Car was stopped, Hinton was wearing a white shirt and was taller than the other occupants, including Copeny and Ware. The officers frisked Arnold, and they found a handgun and the cell phone of the victim on his person. The officers also searched the Town Car, where they found a handgun wrapped in a black face mask, a black hat, black shorts, a black shirt, a black glove, and two hooded sweatshirts.
Officers arrested the men and interviewed Copeny and Ware. In his interview, Copeny said that he had been riding in the Town Car with several others, including Henry and someone known as “Donnio.” Copeny admitted that, when he got into the Town Car, he knew that there were guns in the car. Copeny also admitted that he rode in the Town Car to a vacant house, where, he said, he sat in the car and smoked cigarettes until someone told him to go around to the back of the house. He did so, he said, and from the back of the house, he heard someone say, “Just take it, take what you want.” According to Copeny, he then walked back to the front of the house, saw a man holding up
In a separate interview, Ware admitted that Donnio told him of a plan that involved a woman calling a man and leading the man to believe that she was romantically interested in the man. Then, Donnio told Ware, “they were going to take [the man’s] car.”
(a) As to Copeny, the evidence is sufficient to prove beyond a reasonable doubt that he was a party to the crimes charged. “[A] person who does not directly commit a crime may be convicted upon proof that a crime was committed and that person was a party to it.” Walsh v. State, 269 Ga. 427, 429 (1) (499 SE2d 332) (1998) (citation omitted). Moreover, “whether a person was a party to a crime can be inferred from his presence, companionship, and conduct before and after the crime was committed.” Id. (citation omitted). And as we have explained before, “[i]f the defendant had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor.” McWhorter v. State, 198 Ga. App. 493 (1) (402 SE2d 60) (1991) (citation and punctuation omitted; emphasis in original). See OCGA § 16-2-20 (b) (a person is concerned in the commission of a crime only if, among other things, he directly commits the crime or “[i]ntentionally aids or abets in the commission of the crime”).
Here, the jury readily could conclude that Copeny had knowledge of the crime and shared in the criminal intent of the perpetrators. Copeny accompanied Henry and Donnio to a vacant house after Donnio agreed to help Henry steal a car. The men waited with Henry at the house until, after the victim was contacted, they hid from view. According to Henry, when the victim pulled up, Donnio was positioned behind her so that, when the victim got out of the car, the only person he saw was Henry. The victim testified that four gunmen then
(b) The evidence also is sufficient to sustain Ware’s convictions. Ware admitted that he took money from the victim’s pocket, but he argues that he never admitted to advance knowledge of an armed robbery or a hijacking. Therefore, he contends, Henry’s testimony was the only evidence that he was a party to crimes involving the taking of the victim’s car by use of a handgun, and because Henry was an accomplice, her testimony alone is insufficient. See generally In the Interest of D. J., 253 Ga. App. 265, 266 (558 SE2d 806) (2002) (“[t]he testimony of an accomplice cannot, by itself, establish the guilt of the accused in a felony case”) (footnote omitted). But even slight evidence from an extraneous source is sufficient corroboration to support accomplice testimony, and that evidence may be circumstantial so long as it tends to connect the accused to the crime. See Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010). In this case, the circumstances of the robbery were established by various sources, including the victim, who testified that a gunman took money and a cell phone from his pockets. A rational jury could conclude that Ware knowingly participated in the crimes against the victim and that he was guilty beyond a reasonable doubt of the crimes
2. Copeny also contends that the trial court improperly commented on the evidence while instructing the jury. During deliberations, the jury sent two notes contemporaneously to the trial court. In the first, the jury asked: “Where is Donn[i]o? Was he indicted?” The second note stated: “Ask the judge the guideline for co[-] conspiracy.” The trial court responded to the first note by informing the jury that “those are facts. I cannot go into the facts. The facts are closed.” The judge added, “That’s immaterial to your consideration of the case anyway, as it would be explained by the re-charge that you have asked for.” The trial court then recharged the jury on party to a crime. Copeny joined in Ware’s objection that the trial court commented on the evidence by informing the jury that it was “immaterial that [Donnio] wasn’t here.”
On appeal, Copeny contends that the trial court violated OCGA § 17-8-57, which provides that “[i]t is error for any judge in any criminal case ... to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” But, “[t]he statute is only violated when the court’s charge assumes certain things as facts and intimates to the jury what the judge believes the evidence to be.” Jones v. State, 268 Ga. 12, 15 (5) (483 SE2d 871) (1997) (citation and punctuation omitted). Here, the trial judge made it clear to the jury that he would not address the facts of the case. The trial judge’s comment “that’s immaterial” was made, as he said, in contemplation of giving “the re-charge that you have asked for.” In the ensuing instruction, the trial court informed the jury that a party to the crime may be tried, convicted, and punished, “even though the person alleged to have directly committed the crime has not been prosecuted----’’Accordingly, and in context, the record does not show that the trial court expressed any opinion as to what had been proven at trial, and the court did not breach the limitations of OCGA § 17-8-57. SeeBuffington v. State, 171 Ga. App. 919, 923 (8) (321 SE2d 418) (1984) (charge considered as a whole in considering whether trial court improperly expressed an opinion as to the facts). No new trial is required.
3. Ware contends that the trial court erred in denying his motion to merge the offense of armed robbery into the offense of hijacking a motor vehicle for purposes of sentencing. But as Ware acknowledged below, the hijacking statute itself precludes a merger of these offenses.
Judgments affirmed.
OCGA§ 16-8-41 (a).
OCGA§ 16-5-44.1
OCGA§ 16-11-106.
Copeny appeals in Case No. A11A1876, and Ware appeals in Case No. A12A0283. We decide both appeals with this opinion.
Henry testified at trial and confirmed the role that Donnio, whom she knew as “Dee,” played in the robbery. Henry said that she asked Donnio for his help to steal a car, and he agreed. On the evening of the robbery, she went in the Town Car to a vacant house with Donnio and four other men. According to Henry, Donnio instructed her to call the victim, which she did, and she asked the victim to come see her. When the victim arrived at the vacant house, he was robbed with guns.