David Scott Taylor and his brother, James Taylor, were convicted of aggravated assault in connection with a fight at a Waffle House restaurant. Each appeals his conviction, contending that the trial court improperly allowed hearsay testimony. James Taylor also contests the sufficiency of the evidence supporting his conviction.
The Taylors became involved in a fight with another guest, Billy Winnett, at the restaurant. When Winnett’s friends tried to intervene, one of them, Roger Beahm, was stabbed with a steak knife. David Taylor confessed to police that he was the one who stabbed the victim, and that James Taylor did not handle the knife. The evidence adduced at trial showed, and the parties admit in their appellate briefs, that David Taylor had light brown hair and was wearing a white t-shirt the night of the incident, while James Taylor had dark hair and was wearing a pink t-shirt. Other testimony was also presented that the man in the white shirt, David Taylor, was the one who stabbed Beahm.
At trial, the State sought to introduce a statement given by a witness, Jerome Cronin, to a policeman on the night of the incident. The court overruled defendants’ hearsay objection, finding that the statement was part of the res gestae. The policeman then testified that Cronin told him he had seen a man with light brown hair wearing a pink t-shirt pick up a steak knife during the fight. According to the officer, Cronin said he did not see the knife after this point.
1. Both Taylors contend the trial court erred in admitting Cronin’s statement as part of the res gestae. Res gestae is defined in OCGA § 24-3-3 as “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” “[S]uch declarations[ ] must be contemporaneous with the main fact, but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design.” (Punctuation omitted.)
Brown v. City of Fitzgerald,
“The admissibility of such declarations ... is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the requirements of being free from all suspicion of device or afterthought.” (Punctuation omitted.)
South Ga. Brokers v. Fidelity Bankers Life Ins. Co.,
Cronin’s statement was given to an investigating officer at the scene shortly after the incident. “Hearsay statements made to an investigating officer shortly after the incident are part of the
res gestae
and are admissible at trial.”
Brown,
supra at 862 (3). See also
Powell v. Jackson,
The fact that Cronin might have misidentified the suspect does not render his statement inadmissible. Cronin identified the man with the knife as wearing a pink shirt and having light brown hair, although it was clearly established that James Taylor, who was wearing the pink shirt, had dark hair. However, the fact that statements may reflect confusion on the part of the speaker does not render them inadmissible as part of the res gestae. See
Thomas v. State,
Under these circumstances, we cannot say that the trial court abused its discretion in allowing Cronin’s statement.
2. James Taylor also contests the sufficiency of the evidence supporting his conviction. A person may be found guilty of being a party to a crime if he intentionally aids and abets another in the commission of the crime. OCGA § 16-2-20 (b) (3). “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation omitted.)
Looney v. State,
Viewed in the light most favorable to the verdict, the evidence showed that James Taylor initiated the fight by hitting Billy Win-nett, and that David Taylor then joined the fight. When Beahm tried to intervene to pull Billy Winnett away, David Taylor stabbed Beahm. James Taylor then hit another victim, Allen Winnett, across the back with a chair. There was testimony that both Taylors then followed the victims out of the restaurant, and that the man in the pink shirt hit Billy Winnett while he was in the car. A waitress testified that the man with the pink shirt and dark hair was holding a knife after the fight, and that a girl with him took the knife and *341 threw it into the bushes.
The jury was authorized from this evidence to find James Taylor guilty of aggravated assault beyond a reasonable doubt. This case is similar to
Moore v. State,
Judgments affirmed.