Delarosa v. The State

304 Ga.App. 4

695 S.E.2d 346

DELAROSAv.The STATE.

No. A10A0566.

Court of Appeals of Georgia.

May 7, 2010.

COPYRIGHT MATERIAL OMITTED

Gina M. Grady, for Appellant.

Lee Darragh, Dist. Atty., John David West Jr., Asst. Dist. Atty., for Appellee.

MILLER, Chief Judge.

A Hall County jury convicted Joshua Delarosa of aggravated assault (OCGA § 16-5-21(a)), aggravated battery (OCGA § 16-5-24(a)), possession of a firearm during the commission of a felony (OCGA § 16-11-106(b)), and possession of a pistol by a person under the age of 18 (OCGA § 16-11-132(b)). Delarosa filed a motion for new trial, which the trial court denied. Delarosa now appeals, arguing that (1) the evidence was insufficient to support his convictions of aggravated assault, aggravated battery, and possession of a firearm during the commission of a felony; (2) he was entitled to a directed verdict of acquittal as to the foregoing offenses; (3) the trial court erred in denying his motion to suppress his statements to police; and (4) his trial counsel was ineffective. Finding no reversible error, we affirm.

Viewed in the light most favorable to the verdict ( Rankin v. State, 278 Ga. 704, 606 S.E.2d 269 (2004)), the record shows that Delarosa and John Travis Wills did not get along. According to Wills on November 11, 2005, Delarosa threatened him over the phone while he was in his car with his girlfriend, Stephanie McBroom. That evening, Delarosa and Kacy Gladney convinced Kacy's brother, Kalen, to drive them and another friend, Dustin Thomas, over to Fork Road. According to Kacy, Delarosa wanted to find Wills and fight him. The four men stopped at some friends' house on Fork Road, and when they saw Wills drive by, Delarosa instructed Kalen to follow him.

Wills testified that he and McBroom were driving down Fork Road on the way to his mother's house when another car came flying up behind them. Wills testified that he believed Delarosa was in the car and pulled over because he thought there was going to be a physical altercation, and “I didn't want to bring the trouble back to my mother's house.” Wills stated that before he managed to get all the way out of the car, Delarosa shot him in the back of his leg and shot him again in the abdomen once he exited the vehicle.

At trial, Delarosa testified that he asked Kalen to follow Wills' car because he wanted to talk to Wills to “settle the situation before it got out of hand” and he only shot Wills because he saw Wills pull a baseball bat out of the car and was scared. On direct examination, Wills testified that he was not holding anything in his hands when he exited his car but that he threw a baseball bat out of the window after he got back into the car. But when asked on cross-examination whether he “stopped the car that night and ... got out of the car with a ball bat to deal with Mr. Delarosa because you were mad at him,” Wills responded, “I don't know.” McBroom testified that Wills was not holding a bat when he got out of the car but admitted telling an investigating officer that Wills got out of the car with a baseball bat. Kalen and Kacy testified that, although Wills appeared to be holding a bat when exiting the car, Delarosa shot him before he could have raised it, and Delarosa then picked up the bat that Wills dropped and used it to smash Wills' back windshield

Following the shooting, Wills drove to his mother's house, and McBroom called 911. Wills was transported to the hospital, and, as a result of his injuries, his spleen was removed.

1. Delarosa claims that the evidence presented at trial was insufficient to support his convictions of aggravated assault, aggravated battery, and possession of a firearm during the commission of a felony. We disagree.

“Upon this Court's review of a criminal defendant's challenge to the sufficiency of the evidence supporting a 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.” (Punctuation and emphasis omitted.) Robinson v. State, 296 Ga.App. 561, 675 S.E.2d 298 (2009), citing Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts.” Id. at 561-562, 675 S.E.2d 298.

Delarosa contends that the evidence was insufficient to support the challenged convictions because Wills gave conflicting testimony regarding how long he had a baseball bat in his car, and both McBroom and Wills gave inconsistent testimony as to whether Wills was holding the bat when he got out of his car before the shooting. Delarosa contends that Wills and McBroom were impeached and “neither one of them could rationally be believed.” The question of “whether a witness is impeached is a jury question, and even if the jury determines that a witness has been impeached, credibility remains a matter for that jury.” Richard v. State, 281 Ga. 401, 405, n. 4 (1), 637 S.E.2d 406 (2006). Here, the jury would have been entitled to credit Wills and McBroom's testimony that Wills was shot when he emerged unarmed from his vehicle. Such testimony, together with medical testimony that Wills' spleen had to be removed as a result of his injuries, supported Delarosa's convictions of aggravated assault, aggravated battery, and possession of a firearm during the commission of a felony. OCGA §§ 16-5-21(a), 16-5-24(a), 16-11-106(b).

Even if the jury discounted Wills and McBroom's testimony and concluded that Wills was, in fact, holding a baseball bat when he got out of the car, the disputed convictions still would be authorized. While evidence that Wills held a bat may have entitled Delarosa to assert a justification defense, the evidence did not demand a finding that Delarosa justifiably shot Wills in self-defense. To the contrary, based on the evidence presented, including Wills' testimony that Delarosa had threatened him earlier in the day, Kacy's testimony that Delarosa wanted to fight Wills and instructed Kalen to pursue Wills' vehicle, and Kalen and Kacy's testimony that Wills did not have an opportunity to raise the bat and Delarosa used the bat to smash Wills' back windshield, the jury was authorized to conclude Delarosa was the aggressor in the encounter with Wills or, at a minimum, engaged in combat by agreement with him. In the Interest of S.S., 224 Ga.App. 301, 480 S.E.2d 327 (1997) (jury was entitled to decide that juvenile did not attack victim in self-defense but rather was the aggressor or stood her ground to engage in mutual combat). Such a conclusion would defeat a justification defense. OCGA § 16-3-21(b).

2. Delarosa argues that the trial court erred in denying his motion for a directed verdict of acquittal on the charges of aggravated assault, aggravated battery, and possession of a firearm during the commission of a felony. Since “[t]he standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence,” ( Tahantan v. State, 260 Ga.App. 861, 581 S.E.2d 373 (2003) (citation and punctuation omitted)), we reject Delarosa's claim of error. See Division 1, supra.

3. Delarosa contends that the trial court erred in denying his motion to suppress statements he made during an interview with police in which he, among other things, denied involvement in an altercation with Wills. Delarosa argues that the statements resulted from an unlawful arrest.¹ We find no reversible error.

On appeal from a ruling on a motion to suppress, we must construe the evidence most favorably to affirming the trial court's factual findings and judgment. We accept the trial court's factual and credibility determinations unless they are clearly erroneous, and the factual findings will be upheld if they are supported by any evidence. The trial court's application of the law to undisputed facts, however, is subject to a de novo standard of review.

(Citations omitted.) State v. Hogans, 301 Ga.App. 261, 687 S.E.2d 230 (2009).

At the pretrial hearing on the suppression motion, Officer Michael Todd Casper of the Hall County Sheriff's Department testified that he was on duty on November 11, 2005, when he heard a “be on the lookout” (“BOLO”) notice for a Dodge Neon connected with a shooting in the Sardis area. When asked whether he recalled a BOLO being issued for Delarosa, however, Casper responded that he did not recall a particular name. Casper stated that the vehicle in question was believed to be in the Shallowford Drive area and when he was heading in that direction, he learned that other officers had located the vehicle there. According to Casper, when he arrived at Shallowford Drive around 8:00 p.m., two other officers were on the scene, and Delarosa and three other individuals were standing there in handcuffs. At the direction of a superior officer, Casper transported two of the individuals to the sheriff's office, and another officer transported the other two.

Officer John Robertson of the Gainesville Police Department testified that while on duty at a high school football game on November 11, 2005, he heard a BOLO for a vehicle and for Delarosa in connection with a shooting. When asked what time he heard the BOLO, Robertson stated: “I would have to refer back to some reports or something. It was ... 9:00 or 10:00 ... something like that. It was on a Friday night is all I know.”

The trial court declined to rule on the suppression motion prior to the commencement of the trial, stating that it wanted to hear other evidence in the case. At trial, McBroom testified that when she called 911 and reported Wills' injuries, she identified Delarosa as the shooter. Kalen testified that following the shooting, he and the other men drove Delarosa home, after first stopping at Kalen and Kacy's parents' house....