Jabari McLester was found guilty by a jury of one count of aggravated assault and one count of armed robbery against Dung Nguyen. The jury also found McLester guilty of one count of aggravated assault and one count of armed robbery against Hector Torres. 1 McLester appeals from the conviction and sentence entered thereon. We affirm.
On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict.
Grant v. State,
Nine days later, on October 30,1999, at approximately 8:00 p.m., Torres was walking through the Forest Club Estates apartment complex when he was approached by McLester and two other men. The two men grabbed Torres while McLester took money out of his pockets. Torres testified that one of the other two men told him he had a gun in his pocket, “if I didn’t give him the money.” Torres reported the incident to Officer Myra Zenon of the Clayton County Police Department the following day. Both at trial and at a pre-trial photographic lineup, Torres identified McLester as the person who took money out *72 of his pockets.
1. McLester alleges that the trial court erred in denying his motion to sever the counts involving Nguyen and Torres for separate trial.
Upon defense request, severance is mandatory only “if offenses are joined improperly, i.e.,
solely
because they are of the same or similar character.” (Punctuation omitted; emphasis in original.)
Byrd v. State,
McLester also argues that even if severance was not mandatory, severance was still required because by joining the two cases the trier of fact would be more apt to overlook the weakness of each individual case. We disagree. Here,
the facts in the two cases, as discussed above, are so similar that even if the two cases had been severed, each would have been admissible in the other case as evidence of a similar transaction. Accordingly, where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.
(Citations and punctuation omitted.)
Rocha v. State,
2. McLester next asserts that the State committed racial discrimination during jury selection by exercising four of its six peremptory strikes against African-Americans. See
Batson v. Kentucky,
The United States Supreme Court has established a three-step test for evaluating challenges to peremptory strikes. Once the opponent of a peremptory challenge has *73 made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.
(Footnote omitted.)
Morris v. State,
The preliminary issue of whether [McLester] established a prima facie case of discrimination is moot because the prosecutor offered purportedly race-neutral explanations for the peremptory challenges and the trial court ruled in favor of the prosecution on the ultimate question of intentional discrimination. We therefore need only address the sufficiency of the prosecutor’s explanations.
(Citations and punctuation omitted.)
Williams v. State,
The prosecutor explained that he struck juror no. 38 because such juror stated that two of his sons and a sister had been prosecuted in the same trial court, that he was not happy with the district attorney’s office or the court, and that he did not feel his relatives had been treated fairly by the court. The prosecutor stated that he struck juror no. 64 because such juror had been stopped on two different occasions by police for allegedly no reason and had a previous bad experience with law enforcement. The prosecutor further stated that while juror no. 64 was describing his previous unpleasant encounters with police, he “acted like something was wrong with him like he was wound up too tight and he kept his arms crossed.” The prosecutor stated that juror no. 69 had revealed that his daughter was a defendant in the same county the previous year on an assault charge and was not treated fairly. The prosecutor stated that he did not realize that juror no. 80 was an African-American, but that he struck her from the jury panel because she did not appear to understand the questions that were asked and that she kept repeating that her nephew was a bank robber.
The trial court correctly resolved the step 2 question when it ruled that the prosecutor gave race-neutral explanations for striking the jurors. “A neutral explanation means an explanation based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason . . . will be deemed race neutral.” (Punctuation and footnote omitted.) Morris *74 v. State, supra at 262.
In step 3, “the court must evaluate the persuasiveness of the justification for exercising the strike and determine whether the opponent of the strike carried his burden of proving purposeful discrimination.” (Citation, punctuation and footnote omitted.) Morris v. State, supra at 262. “The trial court’s decision on a Batson motion rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies peculiarly within a trial judge’s province. The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Citation and footnote omitted.) Id.
McLester offered no argument as to why he believed that purposeful discrimination had occurred as to juror nos. 38 and 69. As to juror no. 64, McLester argued that juror nos. 65 and 35, who were not African-American, were not struck even though they reported bad experiences with police. However, the prosecutor stated that he did not strike juror no. 65 because he appeared nonchalant about a speeding ticket that he had received nine years ago, which he did not feel was warranted. However, juror no. 64, whom he did strike, indicated he had several bad experiences with police, the last as recently as one year ago and was very defensive in his body language while describing his alleged bad encounters with police. The prosecutor further stated that he did not recall juror no. 35 reporting that he had any negative encounters with police. As to juror no. 80, the only argument offered by McLester was that he felt such juror understood the questions asked, but was unable to hear sufficiently. Under the facts as set forth here, the trial court’s finding that McLester did not carry his burden of proving purposeful discrimination is not clearly erroneous.
3. McLester next challenges the sufficiency of the evidence as to the counts of armed robbery and aggravated assault against Nguyen and the count of armed robbery against Torres. He contends that the trial court erred in denying his motion for directed verdict.
The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia,443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testi *75 mony of the witnesses, including the State’s witnesses, are a matter ... for the jury to resolve.
(Punctuation and footnote omitted.)
Yarbrough v. State,
(a) As to the offenses against Nguyen, McLester asserts the State failed to prove identity beyond a reasonable doubt. We disagree. Both at the pre-trial photographic lineup and at trial, Nguyen unequivocally identified McLester as one of his assailants. We are mindful that Nguyen initially described McLester, who is over six feet tall, as being approximately five feet six inches tall and weighing 170 pounds, and at the pre-trial photographic lineup, stated that McLester appeared “heavier” in the photograph than he did the night of the incident. However, at trial, Nguyen testified the reason that he misjudged McLester’s height was, as a native of Vietnam, he still had trouble converting measurements from the metric measurements to feet and inches. It was for the jury to determine the weight and credibility of Nguyen’s testimony.
Sanders v. State,
(b) McLester argues that there was no evidence presented that the crime of armed robbery had ended before McLester last pointed the weapon at Nguyen. Thus, there was insufficient evidence to support McLester’s separate conviction for aggravated assault. We disagree.
The evidence supporting McLester’s conviction for aggravated assault was Nguyen’s testimony that, once the armed robbery was completed, his assailants walked several steps away from him. At this point, Nguyen asked them to keep the money and throw his wallet to him. McLester, then, turned around and pointed his gun at Nguyen and told him to “shut up.” See
McCulley v. State,
(c) Lastly, McLester argues that there was insufficient evidence to support his conviction for armed robbery as to Torres because Torres testified on direct examination that, “[i]n that moment everything was [moving] very quickly, but I think I did see a gun.” However, on cross-examination, Torres testified that one of McLester’s co-assailants stated, “he had a gun in [his] pocket if [Torres] did not give him the money.” “Circumstantial evidence may establish the pres
*76
ence of a weapon during a robbery even though the weapon is unseen. [Cit.]”
Maddox v. State,
Judgment affirmed.
Notes
For the purpose of sentencing, the counts of aggravated assault and armed robbery against Torres were merged.