In сonnection with a home invasion during which property was taken at gunpoint from four persons, Dominique Styles was tried by a jury, then convicted of burglary and four counts of armed robbery. In this appeal, he challenges the sufficiency of the evidence, claims he was entitled to a jury charge on robbery by intimidation as a lesser included offense of armed robbery, and contests the denial of his motion for new trial which asserted that his trial counsel had rendered ineffective assistance. We affirm.
1. Styles contends that the trial court erred by denying his motion for a directed verdict of acquittal and that his convictions are not supported by sufficient evidence. Pursuant to Jackson v. Virginia,
In its case-in-chief, the state showed the following. The crimes occurred at the residence of two women and one of the women’s сhildren. Their home had frequently been the site of card games. Styles had once participated in a game there. He returned on July 25, 2009, at about 10:00 p.m. The residents were at home, and their family members were visiting; collectively, the occupants numbered about 12.
When Styles knocked on the front door and announced his name, a brother of one of the residents recognized him, opened the door, and allowed Styles to enter. Styles stepped into the living room and asked the group sitting there whether they were playing cards that night; they answered no. Styles went back to the front door, peered outside, then walked back into the living room. About ten seconds later, a man wearing a mask rushed into the residence through that same door, which had been left ajar.
Meanwhile, one of the family members, who had escaped while the gunman was still inside, ran to a neighbor’s residence and summoned police. While the gunman was outside searching the car, another family member inside the residence dialed police; and a third family member sneaked out a window and ran to a nearby apartment, where he asked residents to contact the police. Styles had initially begun “running behind” that family member; however, as another family member testified, “[Styles] could have kept going and got help, but he came back inside the house where the gunman was,” then went into a bedroom and began “plundering trying to steal [a] PlayStation.”
During the intervals when Styles and the gunman were both at the residence, the gunman never pointed his weapon at Styles and never ordered Styles to relinquish any property. And by the time the police arrived, neither Styles nor thе gunman was still on the premises.
The gunman was later identified as Lamar Jones. Co-indicted on all counts with Styles, Jones entered a negotiated guilty plea, pursuant to which he agreed to testify for the state at Styles’s trial. In his trial testimony, Jones provided details about the planning and execution of the heist. Earlier on the day in question, Styles had called him and told him about a “lick”
On cross-examination of several of the state’s witnesses, Styles’s lawyer elicited testimony that during the incident, Styles had not held a gun, had not threatened anyone, and had not made any demand upon anyone.
Styles was the sole defense witness. He admitted that, prior to the night of the incident, he had been to the residence, where he had played cards and seen “[a] pretty good amount of money” change hands. He testified that when he knocked on the front door on the night in question, he was invited to come inside, and that after stepping inside, Jones came into the residence, waving a gun and demanding money.
Styles conceded that, after his initial entry into the living room, “[t]he door was never closed.” Stylеs, who was 21 years old at the time of the incident, testified that he had known Jones since they were children. Styles admitted that Jones never pointed the gun at him nor demanded from him any money. Styles denied, however, planning with Jones the commission of any offense and testified further that, while Jones was perpetrating the crimes, he and a resident’s family member sprinted to a nearby apartment and asked someone there to contact police.
In rebuttal, the state called as a witness that family member, who recounted that after he sneaked out the window, he saw Styles already outside. Although Styles had initially begun running with him, Styles “split off” and “went some else where” — Styles was not
The indictment charged Styles and Jones with the same 25 offenses. The jury found Styles guilty of burglary of the residence, guilty of the armed robberies of four persons, and not guilty of the remaining charges (including twelve counts of possession of a firearm during the commission of a felony). As explаined more fully below, Styles’s challenges to the sufficiency of the evidence are without merit.
(a) Burglary. At the time of the underlying criminal incident, burglary was defined as follows: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.”
Styles’s argument disregards language in the indictment charging him and Jones, “individually and as parties concerned in the commission of a crime, with the offense of Burglary for that the said accused ... without authority and with the intent to commit theft, a felony, therein, did enter the dwelling house.” Styles further disregards that the trial court included, in its final charge to the jury, these instructions:
Every party to a crime may be charged with and convicted of the commission of the crime. A person is a party to the crime only if that person directly commits the crime, intentionally helps in the commission of the crime, intentionally advises, encourages, hires, counsels, or procures another to commit the crime, or intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of the crime either in fact or because of legal incapacity.7
The evidence showed that Styles proposed to Jones that they commit the crimes underlying this case. Styles had previously been inside the house and determined it to be a gathering place for gambling with money. Pursuant to a plan he designed, Styles gained entry into the residence, then assisted Jones’s entry by returning to the door, peering outside where Jones was staged with gun and mask, then leaving that door ajar for Jones’s entry. Seconds later, Jones abruptly entered through that door, then took money and property from others by use of a gun. This evidence authorized the jury to find beyond a reasonable doubt, under the theory of party to a crime, every essential element of the crime of burglary as to Styles.
(b) Armed Robbery. OCGA § 16-8-41 (a) provides:
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 suсh weapon. . . .
The indictment charged Styles and Jones, “individually and as parties concerned in the commission of a crime, with the offense of Armed Robbery for that the said accused ... did unlawfully take ... by the use of a handgun”: (i) money from one person; (ii) money from a second person; (iii) a cell phone from a third person; and (iv) keys and an envelope containing receipts from a fourth person.
The four armed robbery victims named in the indictment testified that, during the criminal episode, their respective property was taken by the masked gunman (Jones). Jones admitted taking their property at gunpoint, elaborating that the armed robberies were executed pursuant to a plan orchestrated and aided by Styles. Indeed, Jones never pointed the weapon at Styles, nor demanded Styles’s property. And although Styles had successfully fled the property, he circled back to the residence — while Jones was still there — and attempted to steal electronic equipment. Before the police arrived, howеver, Styles (and Jones) had vanished. The state adduced sufficient evidence for the jury to find Styles guilty, under the theory of party to a crime, of four counts of armed robbery.
Challenging the sufficiency of the evidence, Styles cites his testimony that he had played no role in planning the crimes, as well as testimony that he had held no gun, had made no threat, and had demanded no property from anyone. But such testimony supplies no basis for disturbing any of the armed robbery convictions.
The jury, not this court, resolves conflicts in the testimony аnd weighs the evidence. And decisions regarding credibility are uniquely the province of the jury, which was not required to believe [Styles’s] testimony, nor to disbelieve that of [Jones]. Where, as here, there was sufficient evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdicts will be upheld.11
2. Styles contends that the trial court erred by failing to instruct the jury on the offense of robbery by intimidation as a lesser included offense of armed robbery.
object to the court’s failure to include such [an instruction] before the jury retired to deliberate. Accordingly, pursuant to [the] recent decision in State v. Kelly,[13 ] andOCGA § 17-8-58 (b), we review this enumeration of error only to determine whether the court’s failure to include a specific instruction on [robbery by intimation] constitutes plain error.14
To demonstrate plain error under the four-pronged test adopted in Kelly,
The complete rule with regard to giving a ... charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.17
(a) For each of the four counts of armed robbery, the state presented evidence that established all the elements of the crime.
(b) Styles argues further that the jury’s return of “not guilty” verdicts on all 12 counts of possession of a firearm during the commission of a felony illustrates that, had
This argument does not establish plain error under Kelly
3. Styles contends that the trial court erred by denying his motion for new trial, maintaining that his trial counsel rendered ineffective assistance.
In order to prevail on a claim of ineffective assistance of counsel, a convicted defendant must show that counsel performed deficiently and that the deficient performance prejudiced the defendant such that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. Upon appellate review of that claim, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.26
(a) Styles claims that his trial lawyer performed deficiently by failing to request a jury instruction on robbery by intimidation as a lesser included offense of the armed robbery counts. Again citing the not guilty verdicts on the firearm possession charges, Styles asserts that the requisite prejudice was demonstrated.
Styles called his trial lawyer to the stand at the hearing on the motion for new trial, but did not ask the lawyer why no such instruction had been requested. We thus presume that his lawyer elected not to request the instruction as a matter of trial strategy.
Furthermore, Styles’s trial lawyer testified at the motion for new trial hearing that before trial, he had discussed with Styles the potential defenses. Although in hindsight, Styles may question whether the chosen defense strategy backfired, that does not render the strategy unreasonаble.
Q: Are you aware of the events that took place on July 25, 2009, dealing with an armed robbеry here in [this] County?
A: Yes, sir.
Q: . . . I’m going to ask you, are you aware or did you have knowledge of anything regarding this incident prior to it taking place?
A: No. On that day I was in the Hill Street, and me, [Jones] and another guy by the name of Mike and two of my cousins and I, and they was talking about going to [the residence in question]. He left us earlier and went, and he came back and said it was a good bit of peoples there, and so I reckon he waited until dark, so the next day I found out what had happened.
Q: And was this the home involved in the robbery?
A: Yes, sir.
Q: Was [Styles] involved in those discussions?
A: He wasn’t on the scene.
Q: He was not even there?
A: He wasn’t there.
Q: This was prior to the robbery taking place; is that correct?
A: Yes, it happened later that night.
That testimony, as Styles’s post-conviction lawyer argued at the hearing, would have impeached Jones’s testimony that committing the crimes had been Styles’s idea.
But at that hearing, Styles’s trial lawyer testified that he had no recollection of that individual and that Styles had not discussed with him any such potential witness prior to trial. In its order, the trial court expressly found the lawyer’s testimony credible. Although Styles testified at the hearing that he had told his lawyer before trial about this potential trial witness, “[t]he trial court was authorized to believe counsel’s testimony over his.”
(c) Styles complains that his trial lawyer neither retrieved the recordings of the 911 calls, nor “investigate [d] into the person or persons who called 911 from the nearby apartments.” But at the motion for new trial hearing, Styles presented no evidence of either a 911 recording or how any person involved in a 911 call could have aided his defense. His speculation as to what might have been revealed falls short of establishing prejudice.
Judgment affirmed.
Notes
Id. at 319 (III) (B) (emphasis in original); see Shelton v. State,
Jones explained at trial that “lick” was street slang for robbery.
OCGA § 16-7-1 (a) (2009). OCGA § 16-7-1 was amended effective “July 1,2012, and shall apply to offenses which occur on or after that date. Any offense occurring before July 1, 2012, shall be governed by the statute in effect at the time of such offense.” Ga. L. 2012, pp. 899, 949, §§ 3-1, 9-1. See Gorman v. State,
Id. at 106 (1). Accord Bell v. State,
See OCGA § 16-2-20 (concerning “[w]hen a person is a party to a crime”).
See Cargill v. State,
Thompson, supra at 107-109 (2) (reversing burglary conviction because the state failed to prove an entry that was “without authority,” where the defendant was one of three individuals who conspired to enter residence and steal property therefrom; finding that one of defendant’s cohorts entered with permission, that there was no сompetent evidence that defendant’s second cohort entered the residence, and that the defendant “approached the house” but did not enter, as there was no evidence that defendant “directly” committed burglary). Cf. Bell, supra at 672-673 (1) (c) (reversing burglary conviction for lack of evidence of an entry “without authority,” where there was no indication that defendant forced his way into residence or that he was denied permission to enter and there was reason to believe that resident allоwed defendant to enter and where “parties to a crime” was not a theory pursued by the state).
See Cargill, supra; Broyard v. State,
Buford v. State,
OCGA § 16-8-41 (a) provides: “The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.”
Allen v. State,
Supra at 33 (2) (a).
Murray v. State,
Edwards v. State,
See Division 1 (b), supra.
Cf. Edwards, supra at 132-133 (concluding that the appellant, charged with armed robbery at a residence, was entitled to a jury charge on lesser included offense of theft by taking, where appellant’s police statement recounted that he had broken into the residence to steal drugs and money, but that the guns discovered at the residence by police were not his and were already at the residence when he arrived).
Hopkins v. State,
Mason v. State,
Holcomb v. State,
Supra.
See text accompanied by footnote 14, supra.
Allaben v. State,
Colzie v. State,
State v. Worsley,
See Jimmerson v. State,
See id.; Davis v. State,
McDaniel v. State,
Lewis v. State,
See Crowder v. State,