Appellant Crawford was convicted of armed robbery. OCGA § 16-8-41. The evidence showed that although the crime was actually perpetrated by others, appellant was a party. OCGA § 16-2-20. He appeals the denial of his motion for new trial on general evidentiary grounds as well as on the specific ground that no evidence was presented showing that he knew a weapon would be used.
Construed in a light most favorable to the verdict, the evidence showed that the robbery was perpetrated by John Crowe and Randy Espinosa at appellant’s suggestion. These three and Susan Davis were drinking beer one night. After Espinosa and Crowe said they wanted to get some money, appellant suggested they rob a pizza delivery man, advising that this was an easy crime to get away with, that you just ask that it be delivered to another apartment and then wait around the corner and go and get the money. Davis looked up the number in the telephone book, and Crawford called the restaurant. Crowe obtained two ski masks, and with Espinosa went to the designated apartment to wait. After the delivery man left the apartment, the two accosted him and robbed him of approximately $110 and his pizzas.
Crowe testified that he had given a knife to Espinosa a few days before the robbery and that he did not see it again until Espinosa displayed it menacingly during the robbery. Espinosa testified that Crowe had the knife. Davis testified that Crowe had a knife. She was not asked nor did she indicate whether appellant saw or was aware of it.
After the robbery, Espinosa and Crowe returned to Davis’ apartment. Espinosa gave some of the money to appellant and Crowe. The group of four then ate the pizzas. Appellant and Crowe later gave the money back to Espinosa to buy more beer.
After the robbery, Davis and appellant asked Crowe’s aunt to provide Espinosa and appellant with an alibi if they needed one. Davis also suggested that Crowe, who was a juvenile, take the blame, and appellant asked whether that could be done.
Appellant requested a charge on the lesser offense of theft by receiving stolen property but not on any lesser included robbery offense. The jury was given the charge requested but rejected it.
1. As to knowledge of weapon use, appellant relies not upon Georgia cases, but rather upon
United States v. Hamblin,
911 F2d 551, 557-558 (9, 10) (11th Cir. 1990), and
United States v. Pendegraph,
791 F2d 1462 (11th Cir. 1986). They are not binding on us, although they are instructive.
Hines v. Good Housekeeping Shop,
*37 In Hamblin, supra, the defendant was convicted of two counts of unlawful use of a firearm in connection with a bank robbery in violation of 18 USC § 924 (c). Based upon the second conviction, he was given a mandatory 20-year sentence without possibility of parole. The Court of Appeals found the evidence insufficient to support one of the § 924 (c) convictions and vacated the sentence. Citing United States v. James, 528 F2d 999, 1015 (5th Cir. 1976), the court held that the government had the burden of proving that defendant (the getaway driver) shared the same unlawful intent of his co-defendant (the actual perpetrator of the robberies) with respect to the firearm charges. Reversal was based on the lack of evidence that defendant knew of the firearm used by the co-defendant to perpetrate one of the robberies.
In the James case, the court affirmed the § 924 (c) conviction for carrying a firearm in the commission of a felony even though defendant was not present, because he was instrumental in organizing the incident that erupted in gunfire, as noted in Hamblin, supra at 558, n. 3. James held, “ ‘There must exist a community of unlawful intent between the accessory and the perpetrator of the crime, but “. . .an accessory is liable for any criminal act which in the ordinary course of things was the natural or probable consequence of the crime that he advised or commanded, although such consequence may not have been intended by him.” ... It is not essential that the accessory know the modus operandi of the principal. . . .’ [Cit.]” 528 F2d at 1015, n. 22.
James
accords with Georgia law. “The elements of proof that one is a party to a crime or an accomplice requires proof of a common criminal intent. [Cits.]”
Jones v. State,
“ ‘[A] criminal conspiracy is a partnership in crime, and . . . there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a
*38
conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written, or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. . . . And this joint responsibility extends not only to what is done by any of the conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose.’ [Cit.]”
Burke v. State,
“Under [OCGA § 16-2-20], as parties to a crime, participants may be convicted of a crime even though they are not the actual perpetrator. [Cit.]”
Cargill v. State,
In
Pendegraph,
supra, defendant (the getaway driver) was convicted of armed bank robbery and bank robbery based on the perpetration of a single robbery. The armed robbery conviction was reversed because there was no evidence directly showing knowledge by defendant that his accomplice would use a gun.
1
The court stated that the jury’s verdict was probably due to its hearing the statement of a third accomplice admitted in violation of
Bruton v. United States,
In this state, a defendant can be convicted of armed robbery even though he might not have had knowledge that his accomplice was going to use a weapon to perpetrate it, so long as it can be found that use of the weapon by the accomplice was naturally or necessarily done in furtherance of the conspiracy to commit the robbery even though not part of the original agreement. See
Parham v. State,
2. The credibility of the testimony of witnesses is for the jury, and all conflicts in the evidence are resolved in favor of the verdict.
Drake v. State,
Judgment affirmed.
Notes
Under Georgia law, the bank robbery conviction would have been challengeable on substantive double jeopardy grounds. See
Roberts v. State,