Garmon v. State

317 Ga.App. 634

732 S.E.2d 289

GARMON

v.The STATE.

No. A12A1368.

Court of Appeals of Georgia.

Sept. 18, 2012.

Sharese S. Ages, for appellant

David McDade, Dist. Atty., James Alan Dooley, Asst. Dist. Atty., for appellee

McFADDEN, Judge.

After a jury trial, John Lamar Garmon was convicted of aggravated battery, burglary, and criminal attempt to commit armed robbery. As detailed below, we find that the evidence was sufficient to authorize Garmon's convictions and the trial court did not abuse its discretion in denying his motion to sever his trial from that of his co-defendant, Eddie Dodd. Accordingly, we affirm.

1. Garmon challenges the sufficiency of the evidence. On appeal, “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, 443 U.S. 307, 319(III)(B), 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

So viewed, the evidence showed that, early in the morning on July 23, 2008, Larry Cleveland awoke to find two men in his bedroom. The men beat Cleveland with their fists and a flashlight. The men also demanded his keys and money. Cleveland fought with the men and chased them out of his house. In doing so, he glimpsed both men's faces. In the course of the altercation, Cleveland sustained injuries to his head that required numerous stitches and staples and resulted in a scar on his face. At trial, Cleveland identified John Garmon and Eddie Dodd as the two men he had seen in his bedroom.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24–4–8; accord Wilcox v. State, 310 Ga.App. 382, 384–385, 713 S.E.2d 468 (2011). So Cleveland's testimony that Garmon was one of the two men who came into his house, beat him with fists and a flashlight, and demanded his keys and money authorized the jury to find Garmon guilty of burglary, aggravated battery, and criminal attempt to commit armed robbery. See OCGA §§ 16–4–1 (a person commits criminal attempt when, with intent to commit a specific crime, he performs an act constituting a substantial step toward the crime's commission); 16–5–24(a) (a person commits aggravated battery when he maliciously causes another bodily harm by seriously disfiguring the victim's body); 16–7–1(b) (a person commits burglary when, without authority and with the intent to commit a felony or theft, he enters another's dwelling house); 16–8–41(a) (a person commits armed robbery when, with the intent to commit theft, he takes another's property from another's person or immediate presence by use of an offensive weapon). See also Brown v. State, 275 Ga.App. 99, 100–101(1), 619 S.E.2d 789 (2005) (evidence that husband struck wife on head with sword, causing wounds that required stitches, was sufficient to authorize conviction for aggravated battery); Livery v. State, 233 Ga.App. 882, 884(1), 506 S.E.2d 165 (1998) (an offensive weapon includes an instrumentality that, while not offensive per se, may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of its use). Although Garmon challenges the credibility of Cleveland and other trial witnesses who corroborated Cleveland's testimony, on appeal we do not judge witness credibility and “[t]he resolution of [any] conflicts in the evidence is entrusted to the jury.” (Citation omitted.) Brown, 275 Ga.App. at 101(1), 619 S.E.2d 789.

2. Garmon challenges the trial court's denial of his motion to sever his trial from that of his co-defendant, Dodd. Where, as here, defendants are jointly indicted for a non-capital felony, they “may be tried jointly or separately in the discretion of the trial court.” OCGA § 17–8–4(a).

In exercising that discretion, the court must consider the following factors: (1) Will the number of defendants create confusion as to the law and evidence applicable to each? (2) Is there a danger that evidence admissible against one defendant will be considered against the other despite the court's instructions? (3) Are the defenses of the defendants antagonistic to each other or to each other's rights?

(Citation and punctuation omitted.) Butler v. State, 290 Ga. 412, 413(2), 721 S.E.2d 876 (2012).

Garmon asserts that the trial court was required to expressly address in its ruling each of the above three factors. We disagree. The requirement that a trial court consider certain factors in making a discretionary ruling does not necessarily mean that the court must expressly articulate in its ruling its specific findings on those factors. See Clay v. State, 290 Ga. 822, 835–837(3)(B), 725 S.E.2d 260 (2012) (holding that trial court should apply five factors in conducting balancing test to determine admissibility of evidence of witness's past conviction, when conviction was within ten years, but overruling Court of Appeals decisions requiring trial court to expressly list the specific factors in its ruling thereon). Garmon has cited no authority requiring the trial court to make express findings on each factor to be considered in ruling on a motion to sever. The statute authorizing the defendants to be tried jointly requires only that the trial court exercise its discretion without specifying any specific findings that the court must make in that regard. Compare OCGA § 17–8–4(a) with OCGA § 9–15–14(b) (setting forth specific findings a court must make to support an award of attorney fees and expenses of litigation) and OCGA § 9–11–23(f)(3) (requiring trial court, in deciding whether to certify a class, to enter a written order addressing whether factors set out in other subsections of Code section have been met and specifying findings of fact and conclusions of law supporting court's decision as to each factor). Moreover, we have found no cases requiring express findings on the factors pertaining to a motion to sever. Compare Porter v. Felker, 261 Ga. 421, 422(3), 405 S.E.2d 31 (1991) (vacating award of attorney fees under OCGA § 9–15–14 because trial court's order did not contain findings of conduct that authorized award under that Code section); Aleman v. UHS–Pruitt Holdings, 306 Ga.App. 650, 650–651, 703 S.E.2d 96 (2010) (vacating ruling on class certification because trial court failed to specify any findings of facts or conclusions of law on which it based its decision regarding certain class certification factors, as it was required to do under OCGA § 9–11–23(f)(3)); Bryant v. State, 265 Ga.App. 234, 236, 593 S.E.2d 705 (2004) (requiring trial court to enter findings of fact and conclusions of law on factors pertaining to speedy trial decision, but recognizing that “[i]n other circumstances, a summary order entered by a trial court generally is sufficient to enable the appellate court to determine whether the broad discretion vested in the trial court has been abused”).

Garmon also argues that “the trial court should have granted a severance in order to achieve a fair determination of [Garmon's] guilt or innocence.” “[T]he exercise of a trial court's discretion in denying a motion to sever will not be disturbed on appeal unless the defendant clearly demonstrates that he suffered prejudice by one or more of the [three] factors amounting to a denial of due process.” (Citation omitted.) Harper v. State, 300 Ga.App. 757, 769(12), 686 S.E.2d 375 (2009).

Garmon asserts that he suffered prejudice by...