In a fifteen-count indictment, the appellant, Neal Franklin Hesterlee, was charged with six counts of aggravated assault, four counts of armed robbery, two counts of sexual battery, and one count each of burglary, impersonating a police officer, and possession of a firearm by a convicted felon. Three co-defendants were also charged with aggravated assault, armed robbery, burglary, and impersonating an officer. Two of the three co-defendants pled guilty to several of the offenses charged prior to trial. Following a separate trial by jury, Hesterlee was found guilty on all counts and received a total sentence of life in prison plus 35 years. This appeal follows the trial court’s denial of his motion for a new trial.
The evidence produced at trial viewed in the light most favorable to the jury’s verdict shows that Hesterlee and a co-defendant appeared at the front door of a Lake City home under the guise of bеing police officers at approximately 5:00 p.m. on the afternoon of March 20, 1992. A mother, son, daughter, the daughter’s boyfriend, and a male friend of the son, were in the home when Hesterlee and a co-defendant announced their prеsence, wielding guns and badges. The men forced their way into the home, shouted that they were police *331 officers, and placed a gun to the son’s head. After the son and his friend fell to the floor in the living room as demanded by the intruders, the men forcеfully led the son and his friend into a bedroom with the other victims, and demanded that they provide them with money, drugs, cash, and jewelry, threatening bodily injury if the demands were not met. Another co-defendant subsequently entered the home wielding a gun and joined the two men whilе the fourth co-defendant remained outside in an automobile parked in the driveway of the home. While the victims were face down on the floor of the bedroom as demanded by the men, the men ransacked the home in search of the dеsired items. They also tied the son’s hands behind his back with plastic handcuffs often used by law enforcement officials.
Thereafter, Hesterlee, identified by the victims as the leader of the group, removed the daughter’s boyfriend from the bedroom and made specific requests of him for money and drugs. Hesterlee struck the young man in the face twice when the young man could not provide him with any information on the requested items. Hesterlee subsequently removed the daughter from the room, “roughed her up” whеn she was unable to provide him with information on the items requested, and returned her to the bedroom .with the rest of the victims. After viewing abusive behavior exhibited by the “officers,” the mother repeatedly requested to see a form of identification. In response to the mother’s request, Hesterlee grabbed the mother’s hair and informed her that he was not a cop, but was a psycho, her worst nightmare and threatened to kill her. He subsequently put his hand inside of the mother’s panties and placed а finger inside her rectum.
Hesterlee next removed the daughter from the room again and forcibly led her into another bedroom. Once inside the other bedroom, he removed her clothing from the waist down, touched her vagina, and made obscеne comments to her until a co-defendant entered the room and informed him that they needed to leave because of the unexpected arrival of one of the son’s friends. As the friend attempted to enter the home, one of thе co-defendants in the automobile parked in the driveway of the home sounded the horn, warning the others of his entry. The friend was greeted at the door by a co-defendant displaying a gun. When he entered the home, this victim was hit, kicked in the face, аnd pulled across the floor by Hesterlee and a co-defendant.
Hesterlee and his co-defendants took various items from the victims and the home, including money and jewelry. Upon his departure from the home while wielding a gun, he was seen and identified by a passerby. Based upon information received from Hesterlee’s son and a co-defendant, Hesterlee and the other co-defendants were found at a local motel in possession of guns, false police badges, and property belonging to the victims. The police also recovered plastic flex cuffs.
*332 Shortly after their arrest, two of the co-defendants provided the police with written statements implicating Hesterlee as a participant in the robbery. However, at trial, after the men pled guilty to several of the offenses, those co-defendants recanted their previous statements and joined Hesterlee in denying his participation in the venture.
1. Hesterlee contends that a directed verdict of acquittal was warranted on the offenses charged as the evidence produced at trial was insufficient to support the jury’s verdict. We disagree.
In a criminal case, a directed verdict of acquittal is warranted only where there is no conflict in the evidence and the evidence introduced at trial with all reasonable deductions and inferences therefrom demands a verdict of not guilty, the only legal finding possible.
Crumbley v. State,
In the case sub judice, the evidence prоduced at trial shows that Hesterlee assailed all of the victims in addition to touching the intimate parts of the mother and daughter during the robbery venture while holding them at gunpoint. Although Hesterlee and two co-defendants testified that Hesterlee did not рarticipate in the criminal venture, this court, as an appellate body, “does not weigh the evidence or determine witness credibility. [Cit.]”
Williams v. State,
Hesterlee further argues that a directed verdict was warranted because the indictment alleged the use of a model 381 pistol and the evidence produced at trial showed that the weapon used wаs a model 38C. However, this error in the model of the gun used is not sufficient to constitute a fatal variance which would warrant a directed verdict of acquittal. As we stated in
Hechevarria v. State,
2. Next, Hesterlee maintains that the trial court erred in denying his motion to dismiss 1 his court-appointed attorney based upon his disappointment in the manner in which the defense was being conducted. Hesterlee asserts that the trial court’s failure to grant this motion resulted in an abridgment of his constitutional right to counsel.
As we recently stated in
Mack v. State,
In his pro se enumeration of error, 2 as asserted below in his motion to dismiss, Hesterlee claims that his trial counsel was ineffective because he failed to adequately prepare for his defense and expressed an intention to withdraw from representation on several occasions. A hearing was held below on Hesterlee’s motion for a new trial at which time this issue was considered before the trial court. However, we find no merit in these contentions.
“The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance рrejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The mere fact that defendant’s counsel at
*334
tempted to withdrаw from the case . . . does not demonstrate deficient performance.” (Citation and punctuation omitted.)
Middlebrooks v. State,
3. Lastly, Hesterlee through counsel and pro se asserts that the trial court erred in denying his motion to suppress the victims’ in-court identificаtion of him as the assailant because such testimony was based on the victims’ tainted view of him at a probation revocation hearing. We disagree.
“Whether a subsequent in-court identification is tainted depends on all the circumstances оf the case. Conviction based on eyewitness identification at trial following a pretrial identification . . . will be set aside only if the [pre-trial] identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Furthermore, even if a pre-trial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Citations and punctuation omitted.)
Taylor v. State,
Pretermitting the issue of whether the pre-trial identification of Hesterlee at the probation revocation hearing was impermissibly suggestive, inasmuch as the record on appeal does not contain a transcript of such hearing, we find that the trial court did not err in admitting the victims’ in-court identification of Hesterlee. The victims’ in-court identification of Hesterlee was based upon an independent foundation, that is, their visual observation of Hesterlee during the tumultuous incident.
Judgment affirmed.
Notes
Hesterlee filed his pro se motion to dismiss on September 11, 1992, although it was dated September 8, 1992, one day before the beginning of the three-day jury trial in this case.
In
Huggins v. State,