After a jury trial, Mark Newsome was convicted of two counts of aggravated assault (OCGA § 16-5-21), one count of armed robbery (OCGA§ 16-8-41), two counts of false imprisonment (OCGA § 16-5-41), one count of burglary (OCGA § 16-7-1), one count of theft by taking (OCGA § 16-8-2), and one count of possession of a firearm during a felony (OCGA § 16-11-106).
On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the appellant is no longer entitled to the presumption of innocence. Jackson v. Virginia,
Henry and Arnold were taken into the living room while the three intruders ransacked the house. In addition to the cash, the intruders stole necklaces, clothes, a computer, an Xbox, and “just about anything they could put [their] hands on.” The intruders then drove off in Henry’s 2002 Mitsubishi Diamante. Henry immediately got up and ran to the phone to call 911.
Corporal Michael Upshire of the Palmetto Police Department was on patrol on Highway 29 when he heard a be-on-the-lookout call (“BOLO”) for a white Mitsubishi with a certain license plate. A few minutes after hearing the BOLO call, Corporal Upshire saw a car matching the BOLO description and attempted to initiate a stop of the car. As he turned on his lights, the car slowed down; two black males exited and ran into the woods in separate directions. He followed the Mitsubishi’s driver into the woods and radioed for another nearby officer to “go after the passenger.” After a brief chase, Corporal Upshire returned to stop the Mitsubishi “because when they both got out of the car, the car kept going down southbound on Highway 29.” The other officer successfully caught the car’s driver, later identified to be Newsome. The car’s passenger, Newsome’s co-defendant, was apprehended later that day. A subsequent inventory of the Mitsubishi revealed four firearms in the car, including
1. Newsome contends that the trial court erred in failing to give the suggested pattern jury instructions on “mere presence” and “mere association.” We disagree.
Newsome argues that the facts of the case warranted both instructions because they were material to his defense strategy, which “was that he was never inside the home and the State failed to present any evidence that directly connected him to either the home or the abandoned vehicle[.]” Newsome contends that because neither the victims nor Corporal Upshire saw his face and because the officer who eventually apprehended and arrested Newsome did not testify at trial, the State’s case against him hinged solely upon his arrest in proximity to Henry’s car and his connection to the co-defendant. Newsome further contends that a “mere association” charge is warranted because his conviction was based upon his relationship with the co-defendant, who was positively connected with the crimes.
“It is, of course, true that mere presence [or] association . . . , without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction.” (Citation and punctuation omitted.) Mattox v. State,
actually a corollary to the requirement that the State prove each element of the offense charged. The trial court here correctly instructed the jury on the duty of the State to prove each element of the crime beyond a reasonable doubt and instructed the jury fully on the law of circumstantial evidence. Under these circumstances, there was no reversible error in the refusal to give the requested charge [s],
(Citation and punctuation omitted.) Id. Accord Muhammad v. State,
that the indictment is not evidence of guilt; that the presumption of innocence remains with defendant throughout the trial unless and until overcome by evidence; that the State has the unalterable burden to establish guilt beyond a reasonable doubt; on the credibility of the witnesses and conflicts in the evidence; on the quality of circumstantial evidence to convict; and on parties to a crime.
(Citations omitted.) Kelley v. State,
2. Newsome argues that the trial court abused its discretion by permitting the jury to rehear selected portions of the testimony of Officer Green, who took Newsome into custody after his capture, after the jury began deliberations. Specifically, Newsome contends that the trial court prejudiced him by highlighting select portions of an officer’s testimony emphasizing facts harmful to him without placing them in context. We disagree.
During deliberations, the jury sent a note to the trial court asking to “see Officer
It is well settled “that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” (Citation and punctuation omitted.) Barnes v. State,
3. Newsome contends, and the State concedes, that his conviction and sentence as to Count 2 (aggravated assault of Latasha Arnold) should have merged under OCGA § 16-1-6 with Count 3 (armed robbery of Latasha Arnold). This Court has jurisdiction to consider this contention even though Newsome failed to raise the claim before the trial court. Mikell v. State,
Count 2 of the indictment alleged that aggravated assault had been committed by “an assault upon the person of Latasha Arnold by brandishing her with a firearm, a deadly weapon.” Count 3 of the indictment alleged that Newsome committed armed robbery by “unlawfully, with the intent to commit theft, [taking] from the person and immediate presence of Latasha Arnold[,] United States currency, the property of Latasha Arnold, by use of a handgun.”
In Drinkard v. Walker,
Applying this test, we find that the aggravated assault should have been merged with the armed robbery count. Although the armed robbery statutory provision
Judgment affirmed in part and vacated in part, and case remanded for resentencing.
Notes
Shareef Reynolds was named as a co-defendant in the indictment and was tried jointly with Newsome. He is not a party to this appeal.
Thus, the jury had testimony of Newsome’s flight from the police as evidence of his potential involvement in these crimes.
The note sought access to Officer Green’s testimony as to (1) what time Newsome was apprehended and (2) where he was apprehended relative to the stolen vehicle.
OCGA § 16-8-41 (a) (“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon”).
OCGA § 16-5-21 (a) (2) (“Aperson commits the offense of aggravated assault when he or she assaults:... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury”).