Following denial of his motion for new trial, Hargrove appeals his convictions for four counts of armed robbery, OCGA § 16-8-41 (a).
A police officer was advised by several people standing outside a cocktail lounge that a robbery was in progress inside. Upon pushing the door open, the officer was confronted by a group of people attempting at once to exit the premises. According to the officer, defendant attempted to push past him, mumbling that he “didn’t know what was going on.” However, the proprietor approached defendant from behind and hit him over the head, while telling the officer, “that’s one of them.” Defendant was restrained and arrested. A second perpetrator was detained by the crowd until backup police arrived, while a third man ran away.
The proprietor testified that defendant, whom he had known for
Defendant, who was wearing a ski mask, remained outside the door acting as a “lookout.” He later entered the premises to alert the other two perpetrators of the arrival of the police. Defendant removed his ski mask and attempted to exit the bar. The proprietor warned the officer in the doorway to stop him because he was one of the perpetrators. The proprietor testified that he had “no doubt whatsoever” that defendant was the individual who had been wearing the ski mask and had alerted the others of the presence of the police. He could not recall whether defendant had been armed.
A second victim witness, who had also known defendant since he was a small child, testified that defendant was one of the three perpetrators, had acted as the “doorman,” and had been armed with a pistol. A third victim witness corroborated the fact that defendant entered the bar when the police arrived to warn the others. Each victim testified to having been robbed at gunpoint of cash and/or jewelry.
Defendant and his two accomplices were jointly named in a 26-count indictment, in which he was charged with six counts of armed robbery (OCGA § 16-8-41 (a)), six counts of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (1)), and one count of possession of a firearm by a convicted felon (OCGA § 16-11-131 (b)). He was also indicted as a recidivist under OCGA § 17-10-7. He was tried separately on four counts each of armed robbery and possession of a firearm during the commission of a crime and was convicted of the armed robberies.
1. The State served a “notice of intent to proffer evidence of similar transactions,” in compliance with USCR 31.3. At the Uniform Rule 31.3 (B) hearing, the State informed the court that it intended to introduce evidence of defendant’s convictions for three prior armed robberies of business establishments by use of a pistol, for the purpose of showing defendant’s intent and bent of mind in entering the premises. Defendant responded that the prior offenses were dissimilar since the evidence in the present case would establish that defendant was not involved in the robbery but was merely present in the bar. He objected to its admissibility on the ground that there was not sufficient similarity between the independent offenses and the crime charged. The State provided certified copies of the prior convictions
Certified copies of the three convictions were admitted at the conclusion of the State’s case-in-chief, at which time defendant unsuccessfully renewed his objection on the ground previously asserted. The court instructed the jury that the evidence was to be considered only to “illustrate the defendant’s state of mind on the subject involved, if you think it does so illustrate. ...”
The independent crimes were sufficiently similar to the offenses charged so that proof of the former tended to establish intent or bent of mind to commit the crime for which defendant was on trial. See generally
Stephens,
supra at 469;
Chastain v. State,
“[T]he requisite similarity between the . . . incidents depends on the purpose for which the evidence is being presented. ... In this case, . . . the admissibility rests on the question of whether the evidence tends to prove intent. . . .”
Maggard v. State,
2. Defendant contends that the State violated the proscriptions of OCGA § 17-8-75 when the prosecutor attempted to restate, for clarification, a question posed by the jury during their deliberations. Assuming without deciding that defendant’s objection was timely, the prosecutor’s remarks did not constitute “statements of prejudicial matters which are not in evidence.” OCGA § 17-8-75. Moreover, the jury’s question and the prosecutor’s attempt to restate it, related only to the charges for which defendant was ultimately acquitted (possession of a firearm). “If the challenged remark is not such as would be likely to prejudice the defendant’s right to a fair trial, such will not constitute reversible error. [Cit.]”
Davis v. State,
3. Alleging certain inconsistencies in the testimony of the victim
Judgment affirmed.