Case Information
*1 FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, JJ. NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
June 15, 2015 In the Court of Appeals of Georgia
A15A0020. WHITE v. THE STATE.
M C M ILLIAN , Judge.
In March 1997, Michael Jerome White was convicted by a jury of armed robbery, kidnapping with bodily injury, and burglary. The trial court subsequently granted White’s June 16, 2014 pro se motion for out-of-time appeal, and this appeal followed. White asserts on appeal that the trial court erred in overruling his counsel’s objections to the court’s questioning of the victim and that the evidence was insufficient to support his convictions. We affirm for the reasons set forth below.
Viewed in the light most favorable to the verdict, [1] the evidence showed that on August 16, 1996, at around 9:00 p.m., 63-year-old Jack Morris left his place of business in his truck and drove home after a quick stop at a store. When Morris *2 arrived home, he went inside and placed his briefcase on the living room sofa and turned on lights inside and outside of the house. When Morris went back outside to retrieve his mail, White confronted him, put a gun to his head, and ordered him to open his truck door. After searching the truck, White forced Morris back inside his house. White grabbed the briefcase off the sofa in the living room and took Morris and his briefcase to the dining room. White opened the briefcase, scattered the papers inside, and kept asking where the money was. At that point, White took Morris’s ring, watch, and a small caliber handgun from the briefcase and put them in his pocket. He also demanded Morris’s wallet and took $40 to $45 and credit cards from inside. White then forced Morris into the kitchen and from there, into the den where he demanded that Morris unlock his gun cabinet. He directed Morris to take the rifles and shotguns out of the cabinet and lay them on the floor, and he told Morris to remove the ammunition and put it in a plastic bag, which Morris did.
Next, White forced Morris into the back bedroom of the house and then into the front bedroom. White ordered Morris to lay down on the bed and then snatched the telephone cord from the wall. White put a pillow over Morris’s head, put the gun next to the pillow, and fired. White left the room, and Morris, who had survived the gunshot, retrieved another gun that he kept under his mattress and followed White out *3 of the bedroom. Morris found White at his front door with a stack of guns in front of him. When White turned to face him, Morris fired his gun. White crawled toward the dining room then got up and ran into the kitchen. Morris then fired a second shot. He heard White drop the bag of ammunition and heard the back door slam. Morris went to the back door and locked it, and after locking the front door, he called police. The gunshot had entered Morris’s left chest, injuring his chest and lung and fracturing multiple ribs. Morris underwent surgery to treat his injuries and to remove the bullet. He remained in intensive care for ten days.
After their arrests, White and his co-defendant, Alvin Jones, told police that they had spotted Morris leaving the mall and followed him to the store and then home in order to rob him. White admitted that he had confronted Morris with a gun outside his house, forced him back inside, walked him around the house, and then forced him to remove the guns from the cabinet. White also admitted to hitting Morris in the head with the gun and to shooting him but said that occurred because they were struggling. Afterward, White and Jones drove to Darien, Georgia, where White hid some guns and threw the shirt he was wearing out the car window. Police later recovered the shirt, and the blood on it was identified as belonging to Morris. White took police to the location where he hid the guns, and one of the guns recovered was identified as *4 the gun used to shoot Morris and another gun was identified as belonging to Morris. The evidence at trial also showed that White had pawned Morris’s ring at a pawn shop the day after the incident.
White testified at trial and admitted, inter alia, that he was at Morris’s house on the day of the incident with a gun; that he intended to steal something when he went into the house; that he ordered Morris to open the gun cabinet, take the guns out and put the ammunition in the bag; that he took Morris’s ring and pawned it; that he shot Morris; that afterward he went to Darien to hide the guns; and that his shirt was thrown out the window on the way.
1. White asserts that the trial court erred in overruling his counsel’s objection to the court’s own questions posed to Morris at the end of his testimony. [2] The trial judge asked Morris whether he gave White or his accomplice authority to come to his house and enter his house, to which Morris replied in the negative. And the trial court asked whether White or the accomplice exhibited any lawful authority to hold him, to which Morris replied, “No, sir.”
*5 White’s attorney objected to this questioning arguing the State “had failed to elicit material evidence to indicate the elements of the offense.” [3] He stated that he had been planning to raise a motion for directed verdict on this basis. He objected to the court’s asking questions to provide elements that the State had failed to prove in its direct or redirect of Morris.
It is well settled that “[a] trial judge may propound questions to a witness to
develop the truth of the case or to clarify testimony, and the extent of such an
examination is a matter for the trial court’s discretion.” (Citation omitted.)
Finley v.
State,
2. White also asserts that the evidence was insufficient to support his
convictions for armed robbery, burglary and kidnapping. On appeal, this Court “does
not weigh evidence or resolve conflicts in trial testimony.” (Citation and punctuation
omitted.)
Hargrave v. State
, 311 Ga. App. 852, 855 (2) (717 SE2d 485) (2011).
*6
Rather, this Court “can only review the evidence to determine if there is any evidence
to support the verdict.”
Drake v. State
,
Thus, to the extent that White asserts that his convictions are against the weight
of the evidence, we note that “such an argument may only be made to a trial court in
a motion for new trial, not to an appellate court on appeal. We do not have the
discretion to grant a new trial on these grounds.” (Citations and punctuation omitted.)
Hughes v. State
,
(a) Under 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[.]” We find the record contains ample evidence to support White’s conviction for armed robbery. The evidence showed that White and Jones followed Morris home for the express purpose of robbing Morris and that White pointed his gun at Morris’s head and took his ring, his watch, money, credit cards and guns.
(b) At the pertinent time, the burglary statute provided that “[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.
*7
. . .” OCGA § 16-7-1 (b) (Ga. L. 1980, p. 770, § 1). See also
State v. Newton
, 294 Ga.
767, 770-771 (
(c) White also asserts that the evidence was insufficient to support his conviction for kidnapping with bodily injury. We disagree.
OCGA § 16-5-40 (a) provides that a person commits the offense of kidnapping
when he “abducts or steals away another person without lawful authority or warrant
and holds such other person against his or her will.” Additionally, “[k]idnapping with
bodily injury . . . requires that an injury, no matter how slight, occur during the
kidnapping.” (Citation and punctuation omitted.)
Mayberry v. State
, 301 Ga. App.
503, 512 (6) (
In considering this argument, we must examine the evidence at trial “in light
of the statutory definition of kidnapping that was in force at the time of [White’s]
crimes rather than the broader definition of kidnapping established by the [2009]
amendment to the kidnapping statute by the General Assembly.”
Tate v. State
, 287
Ga. 364, 365-366 (1) (a) (
Accordingly, we must apply the test set out in
Garza v. State
,
Garza sets out four factors that should be considered in determining whether the asportation element of kidnapping is met: (1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense. Id.
Here, we have no evidence of the duration of the movement, but we find that
the last instance of asportation, from the back bedroom to the front bedroom, occurred
during the commission of a separate offense and not as an inherent part of another
charged offense. When White forced Morris into the second bedroom, the offenses
of robbery and burglary were complete. White had already entered Morris’s house
with the intent to steal from him and had already forcibly taken his property from
him. No evidence exists that White took anything from either of the bedrooms.
Instead, he took Morris into the bedroom, forced him to lay down on the bed, pulled
the telephone cord out of the wall, put a pillow over Morris’s face, and shot him.
Based on this evidence, we conclude that movement itself presented a significant
danger to the victim independent of the danger posed by the robbery and burglary.
The jury could have inferred that White took Morris into the bedroom and cut off his
source of communication with others in order to isolate him and to make it easier to
inflict bodily injury. See
Upton v. Hardeman
,
Accordingly, we affirm White’s convictions.
Judgment affirmed. Barnes, P. J., and Ray, J., concur .
Notes
[1]
Jackson v. Virginia
,
[2] Although White asserts on appeal that this exchange occurred at the close of the State’s case, this exchange actually occurred at the end of Morris’s testimony. Morris was the first of sixteen witnesses presented by the State at White’s two-day trial.
[3] Although White’s trial counsel did not identify the offense to which he was referring, White identifies the offenses on appeal as burglary and kidnapping.