In Windhom v. State,
1. The evidence was sufficient to support the conviction.
When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia,
Viewed in this light, the evidence, including the testimony of co-defendant Chris Graddick, shows that an armed robbery occurred at the A&Z Flower and Game Shop on May 19, 2009. Errol Windhom played the game machines at A&Z almost every day. On the day of the robbery, after he was finished playing, he approached the counter and began a conversation with Melissa Ann Amin, an employee of A&Z. While they were talking, Windhom’s phone rang, and he told Amin it was his little girl. Five to ten minutes later, Michael Shane Bedford and Chris Graddick entered the store; they had been in the store the day before and Amin recognized them. Bedford pulled a gun on Amin and threatened to kill her. He told Amin to empty her pockets and the cash register. He took the store’s cordless phones, Amin’s cell phone, and $700 to $900. The two men told Windhom to lie on the ground and locked Amin in the bathroom. Amin never saw either of the two men pull a gun on Windhom or take anything from him. When she left the bathroom ten minutes later, she saw that Windhom was gone and his red Volvo was no longer parked in his parking spot.
Graddick testified that Windhom drove him and Bedford to the store in his red
The security camera of a neighboring business made a video recording of the parking lot of A&Z, showing the three men arriving and leaving, and Graddick described the events as the video was played for the jury. On May 4, 2012, Graddick pled guilty to robbery by intimidation.
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 § 16-8-41 (a). Evidence was presented showing that Windhom drove the robbers to the scene, supplied the weapon, functioned as a lookout, and drove the getaway vehicle. “The evidence was sufficient to show that [Windhom] was a party to an armed robbery.” Windhom,
2. The trial court did not err in allowing Graddick to testify.
Windhom argues that the trial court erred in denying his motion in limine to prevent Graddick from testifying because he was not competent. In support of his argument, Windhom introduced at trial a July 15, 2010 report by a psychologist who performed a court-ordered competency evaluation of Graddick and concluded that he was not competent to stand trial. But almost two years later, on May 4, 2012, Graddick entered a guilty plea to robbery by intimidation, at which time the trial court made a finding that he was, in fact, competent to knowingly, intelligently, and voluntarily waive his constitutional rights. The instant trial took place September 17-19, 2012. In denying Windhom’s motion in limine, the trial court noted that no court had ever found Graddick to be incompetent; the only evidence of his incompetency was the psychologist’s opinion. Windhom has not shown that the trial court abused its discretion in denying his motion in limine, given that Graddick was found to be competent two years after the psychologist’s evaluation and only months before the instant trial occurred. See Rawls v. State,
3. The trial court did not err by allowing the video recording to go out with the jury.
Windhom argues that the trial court erred by allowing the video recording that Graddick narrated to go out with the jury, because the video recording was a continuing witness. But unlike a videotaped interview or a transcript of testimony, the video recording, which was admitted without objection,
is independent and original evidence, in and of itself, and does not depend on the credibility of the maker for its value. It is a true depiction of the event. Therefore, since the video [recording] ... was independent and original evidence, did not depend for its value solely on the credibility of the maker and was not a substitute for testimony, it was not subject to the continuing witness rule.
Mathews v. State,
4. The trial court did not err by refusing to give Windhom’s requested jury charges on a witness’s motive for testifying and mistake of fact.
(a) Windhom argues that the trial court should have given his requested charge on the motive of a witness to testify to enable the jury to evaluate the testimony of co-defendant Graddick. The record does not contain a copy of Windhom’s written requests to charge, so we cannot determine the legal accuracy of the charge he argues should have been given. See Carter v. State,
the court instructed on credibility of witnesses, the interest of a witness, impeachment, and motive of a witness. Our review of these charges shows that they substantially and adequately cover the principles contained in the requested charge.
Windhom,
(b) Windhom argues that the trial court should have given his requested charge on mistake of fact. As noted above, the record does not contain a copy of Windhom’s written requests to charge, so we cannot determine exactly what he requested on this issue or its legal accuracy. See Carter,
Nothing in our record shows whether the mistake-of-fact charge Windhom requested in the instant trial is the same as the charge he requested in the first trial. We cannot determine how Windhom’s requested charge varied from the charge actually given. But “[t]he trial court’s charge, as actually given, was full and fair and substantially covered all the legal principles relevant to the determination of [the defense of mistake of fact].” Carter,
5. Windhom’s sentence does not violate the United States and Georgia Constitutions.
Windhom argues that his 20-year sentence is grossly disproportionate to the nature of the offense, in violation of the United States and Georgia Constitutions. Windhom’s sentence was within the statutory range for armed robbery. OCGA § 16-8-41 (b) (“A person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.”). “[A] presumption arises when a defendant is sentenced within the statutory limits set by the legislature that such sentence does not violate the Eighth Amendment’s guarantee against cruel and unusual punishment.” Wilis v. State,
the punishment must fall within one of two classifications. See Graham v. Florida,560 U. S. 48 , 59 (II) (130 SC 2011, 2021-2022, 176 LE2d 825) (2010). First, a punishment may be unconstitutionally cruel and unusual in the rare circumstance where the defendant’s sentence is “grossly disproportionate” to the underlying crime. Id., 130 SC at 2022. Second, a punishment is unconstitutionally cruel and unusual if it violates certain narrow “categorical restrictions” enunciated by the United States Supreme Court. Graham,560 U. S. at 59 (II), 130 SC at 2021-2022. Because [Windhom’s] sentence does not fall into either of these two classifications, this enumeration is without merit.
Id. (citations and punctuation omitted). And while Windhom does cite Ga. Const. of 1983, Art. I, Sec. I, Par. XVII and some Georgia cases “he does not argue ... any basis for
Judgment affirmed.
Notes
In the prior appeal, the appellant’s name was spelled as “Windhom.” In this appellate record, the appellant’s name is sometimes spelled as “Windhom” and sometimes spelled as “Windham.” We will refer to the appellant as Windhom, as we did in the prior appeal.