*1 25, November Decided 12, 2003. December denied Reconsideration Dalton, R for Bradley, appellant. Kevin & Raymond Shaffer, Woodall, Turner, Verna L. Woodall, Angela A. Jeffrey & Turner Smith, appellees. THE STATE. LOWERY v.
A03A1200. (592 SE2d Judge. Presiding Blackburn, conviction trial, appeals jury
Following to the evidence was insuffiсient contending that robbery, for armed (1) con reasons: following affirm for the the verdict. We support verdict, evidence was most favorable light strued in as the robbery,1 for armed conviction support Lowery’s to sufficient that he coop and circumstаntial evidence both direct provides record Williams, before, co-defendant, during, Octavious erated with crime; unequivocally at his and after and, now such, cannot robbery never happened, the armed at trial that he himself perjured first time on arguе, for the he did not in in his but happen fact and that the Court, are the sole arbiters of not this jurors, participate; credibility. Lowery was against evidence
1. The direct and circumstantial him. to the verdict support sufficient conviction, the evidence must from a criminal On appeal verdict, and the favorable to the most be viewed innocence; longer enjoys presumption no defendant weigh the evidence or moreover, court does an appellate determines whether credibility but determine witness of Jackson v. sufficient under the standard the evidence is witnesses, includ testimony Conflicts Virginia,2 credibility for the witnesses, a matter of ing the State’s long competent As as there is some to resolve. contradicted, necessary each though support even upheld. verdict will be out the State’s make 16-8-41. Virginia, S. 61 LE2d v. 443 U. SC Jackson testimony single generally of a witness sufficient to establish a fact.
(Punctuation omitted.) Arnold State3 light, May
Viewed in this 15, 2001, record shows Lowery and Williams were out for a At time, walk. the same Trabel *2 Rodriguez Kegler way Kegler’s Moore and on wеre their to lunch in Lowery, waving cousin, car. Moore noticed side speak his them down from the Kegler stopped stepped road, of and the car. Moore out to Lowery, pulled with who asked to borrow When Moore $20. money pocket, pointed gun from his back Williams in his face and $400). (approximately Lowery looking demanded all of his cash With Kegler’s on, Williams then leaned into the car and demanded cash $50). (approximately robbery, Kegler sped away After the Moore and from their assail- Kegler they they ants. Both Moore and off, testified drove Lowery together, running witnessed Williams and back of a leave toward the Shortly Lowery on thereafter, house Corn Avenue. both and Williams were arrested at this house. (a) provides: person § OCGA 16-8-41 “A commits the offense of robbery when, armed theft, with intent to commit he or she takes property person of another from the or the immediate of weapon, any replica, another use of an offensive article, or having appearance weаpon.” device § turn, of such In 16- (a) “Every person 2-20 states: concerned of commission a crime party charged is a thereto and with and convicted of commis- (b) (3) person sion of the crime.” OCGA 16-2-20 states further: “A [intentionally concerned in the commission of а if crime he . . . aids or abets in the commission of the crime.” support Lowery The facts in this case conclusion that robbery. light Lowery’s flag to the armed In of action in ging presence during victims, down the the commission of the flight crime, his from the of scene the crime Williams, with and his apprehension company supporting in the “the evidence [Lowery’s]role, both circumstantial, direct and was sufficient as a support matter law his conviction as a to the crime of robbery.” armed supra. Jackson, Cantrell v. State4 See also contrary finding
And, to the dissent, since there was both guilt, direct and circumstantial evidence of the circumstantial evi requiring dence rule exclusion other reasonable apply. does not Smith v. State5 See also Gresham v. State6 601) (2003). State, App. Arnоld v. 260 Ga. (1) (498 (1998). App. Cantrell v. 230 Ga. (1) (511 Smith v. Gresham a heavily reaching on testi- conclusion, relies its the dissent In pulled mony Lowery out his when Williams looked shocked that: during robbery. Lowery Our standard of gun was silent and requires the evidence this to view however, Court review, defendant, favоrable to verdict, not most to the most favorable support competent long each fact evidence to is some as there and as necessary affirmed. must be case, the verdict make out the State’s supra. Arnold, per- Lowery apрeal, contends that now first time on
2. For the pres- robbery happen in his jured in fact Asking trial, did that the himself bystander. to look this Court ence, past that he was a mere knowledge prior argues perjury, Lowery he “had no now that by,” surprised his co-defendant’s in fact of, and was Lowery’s argument however, is victims. Fatal to jury. present this of innocence During he did not the defense that did set forth Kegler. going Both Moore Moore and Williams was to rob know that Kegler testify shocked when Williams looked unequiv- explicitly gun. pulled However, оut his *3 ocally at all. crime never occurred at as did that the length they into contact The at that never came defendants testified day they Kegler crime, that not rob with Moore or on the of the story men, had the whole because the and that Moоre concocted stemming was Moore and the defendants there bad blood between drug dealings and with Moore’sformer from girlfriend. Williams’s involvement — credibility question placed jury pure was one of The before the robbery testified, occurred, whether, whеther, the victims had or by fiction, testified, as the defendants was concocted the revenge. jury purposes no that Moore of There can be doubt the lying robbery based on their ver- found that was about the dishonesty, Lowery’s turn, dict. This determination of in allowed thе by jurors reject any “surprised” the rob- evidence that bery this as erroneous. This Court cannot look behind conclusion. in is the
3. The bottom line this case determination credibility. question “The of was made on their assessment of based [Lowery’s] largely credibility, guilt [his] for the rests on which was jury Coley credibility of to decide.” v. State.7 “The the witnesses jury.” weight given province the sole the to be the evidence are (Punctuation omitted.) arriving jury “A in Gaston v. State. Coley Ga. Gaston v. upon disputed testimony part elusion of a issues of fact thе believe of reject part. witnesses, witness another Where a defend explain ant’s statements not consistent with and do not other explanation may evidence, direct and circumstantial the defendant’s by rejected Kilgore trier fact.” v. State. сonsidering jury clearly After evidence, all the decided that appellate court, could not be an believed. As it is not our role reweigh judgment this evidence and substitute our for that of the jury. Beyond appellant that, we should not allow the to assert on аppeal present a defense which he not at trial but also rejected conjunction in favor a defense advanced in with a co- acknowledges. defendant whose he now Even if all of the evidence had been circumstantial and theоry had asserted at trial the of innocence he now advances [i]t entirely is well settled that in an circumstantial question whether there is a reasonable favorable jury’s province. to the accused is the Questions as to reason- generally jury ablеness are to be decided which heard beyond and finds a reasonable doubt that guilt. there is no reasonable other than appellate finding, court will not disturb that ver- unless the guilty insupportable appel- dict of as a matter of law. The yardstick by ordinarily late courts have no which to deter- given hypothesis, mine what in a case ais reasonable save opinion jurors 12 Moreover, rational mind. jury credibility including case is the arbiter of as explanation, jury body defendant’s and the is the which conflicting resolves evidence, and where the has done appellate merely judg- so, court cannot substitute its jury. ment for
(Citations omitted.) punctuation and Giles v. State.10If this Court has extremely judgment been reluctant to substitute its for that of the wholly when the evidence is circumstantial, how much more argues appeal theory reluctant should we be where a defendant a of innocence which he did not assert at trial. Judgment Smith, J., Andrews, C. J, J., P. Ruffin, P. affirmed. Ellington, Phipps, JJ.,
Miller and J., concur. dissents. 9 State, 640) (1986). Kilgore 656, App. v. 177 Ga. 658 SE2d 10 (440 (1) 48) (1993). State, 594, App. Giles v. 211 Ga. 595 SE2d
659 Judge, dissenting. Phipps, prove that to was insufficient I find that the evidence Because by Octavious to crimes committed a the was respectfully Williams, I dissent. coupled presence with crime, even of the
Mere at scene knowledge approval, to a defendant not convict sufficient and during being Nor is evidence a to. crime.11 flight coupled Even if conviction.12 to sustain a with sufficient crime grave suspicion presented that a a at trial creates the evidence suspicion may guilty charged crimes, will not sus defendаnt be tain a conviction.13 Lowery, favor most considered
The evidence present during prosecution, the rob that he was showed able bery, that he and the same time as that he left scene at robbery. The evidence time after the found with Williams some was Lowery flagged prior the rob his down cousin also showed bery. intention was, however, evidence that There no direct ally of the crimes. Williams in the commission aided and abetted presence, Although conduct, and from criminal intent can be inferred suрporting companionship offense,14 the facts before and after the every must exclude based on circumstantial evidence conviction guilt hypothesis the accused.15 that of the save other reasonable jury generally rea whether оther “And while the determines excluded, we must has been sonable alternative but hypothesis of innocence when a blinded verdict reasonable appears thereof, as a lack declare such from the evidence or law.”16 matter of
Here, armed victims They pulled gun. also testified when Williams out looked shocked that held the say anything of them while Williams to either gun. presented not exclude the rea- The evidence trial did Lowery happened hypothesis rid- to see cousin that when sonable during ing stоpped road, him for a conversation down knowledge prior of, and and had no which he asked $20 Lowery’s by, subsequent surprised Thus, Williams’s actions. 11 (489 370) (1997). State, 564, Cummings App. SE2d v. 227 Ga. 566 12 (340 888) (1986) (evidence motive, State, Ga. 521 SE2d See Moore v. 255 conviction). flight presence, were not suffiсient to sustain 13 (370 216) (1988). State, Ridgeway App. v. Ga. (448 752) (1994). App. v. Watson 24-4-6; see also Willis (1994) (in nothing if is worth the circumstances a criminal circumstantial evidence guilt). reasonably well as the of (488 with of innocence as consistent omitted.) (Citation punctuation Grant v.
660 unsupportablе victions for armed are as a matter of law and should be reversed.17 majority position
The takes the that there was both direct and Lowery’s guilt result, circumstantial evidence of as a the with the apply. disagree circumstantial evidence rule does I majority’s conclusion, if it but “even can be said that there was some [Lowery] direct a crimes, evidence that does not negate [Lowery] the fact that there is a reasonable proof was not a to the crimes.”18The state’s burden does not change presented because the evidence is direct rather than circum evidence, stantial. Direct as well as circumstantial “must beyond establish able a reasonable doubt exclude reason theory of innocence if a conviction is to be obtained.”19 Decided November 12, 2003 Reconsideration denied December Brimberry, Kaplan Brimberry, Hayes, appellant. & A. Lee for Lowery, pro se. Hodges Attorney, Terry, III, Kenneth B. District Leisa G. appellee. A03A1243. HOWARDv. JOHNSON et al. (592 93) Judge.
Adams, Fielding Spring Missionary Baptist Fivе deacons of the Church* pastor filed suit Reverend Howard, Gilbert of the church, handling in The property. connection with Howard’s of church funds and complaint sought declaratory judgment that the Board of Dea authority property, sought cons had to control church and further enjoin interfering Howard from with church business. Fielding Spring Missionary Baptist organized Church was incorporated 1880. The church is not and does not have written id.; Moore, supra. See see also (499 (1998) J., Walsh (Sears, dissenting). (443 845) (1994) (Hunt, Mims v. J., 273-274 C. concur- ring); (Fletcher, see also J., Stubbs v. P. (“thе curring specially) prove guilt beyond state must the defendant’s a reasonable doubt and the state’s evidence must exclude all reasonable theories innocence whether the evi- both”). direct, circumstantial, dence is plaintiffs Johnson, Drummer, Ruffin, Stephen Richard Franklin Judson Gaines, Leroy They brought individually capacity Johnson. this suit and in their as dea- cons.