Gordon v. State

1

GORDON v. THE STATE.

No. A24A0926

Court of Appeals of Georgia, Third Division

October 25, 2024

DOYLE P. J., HODGES and WATKINS, JJ.

HODGES, JUDGE

Following a jury trial, the Superior Court of Muscogee County entered a judgment of conviction against Dimitrius Gordon on five counts of armed robbery (OCGA § 16-8-41 (a)), three counts of aggravated assault (OCGA § 16-5-21), two counts of kidnapping (OCGA § 16-5-40 (a)), and one count of possession of a firearm during the commission of a crime (OCGA § 16-11-106). Gordon appeals from the trial court's denial of his motion for new trial as amended arguing that: (1) the evidence was insufficient to support some of his convictions; (2) the trial court abused its discretion in admitting into evidence a rap music video to show plan, preparation, and identity; (3) the trial court erroneously denied his Batson^[1] challenge; and (4) he received ineffective assistance of trial counsel due to counsel's failure to move to sever his trial from that of his co-defendant Michael Johnson. Finding no error, we affirm.

Viewed in a light most favorable to the verdict,^[2] the evidence adduced at trial reveals that Gordon, also known as Slim Dizzy, was friends with Johnson. In fact, Johnson posted Gordon's bond for his release from the Russell County, Alabama jail on unrelated charges. Both were involved in the Columbus, Georgia-area rap music scene; Johnson claimed to be the leader of the RBN ("Real Boss N*****s") rap group, performers of "Hood Where I'm From" and the like.

April 11, 2012 Winn-Dixie Robbery. At approximately 10:45 p.m. on April 11, 2012, five men "came busting through the door" of the Winn-Dixie grocery store on Milgen Road in Columbus, Muscogee County. After they entered the store, one of the men ordered a cashier to lie on the floor, while another confronted a customer, threatened him, and took his cell phone. One of the assailants also demanded and took another customer's cell phone before running down an aisle.

At some point, three of the masked men, who were armed and dressed in black clothing, entered the closing manager's office and demanded that he open the store's safe. When the manager informed the assailants that the safe was in another part of the store, a fourth masked man, who was larger and armed with a semiautomatic rifle, entered the room and instructed the other three to take the manager to the front of the store. While they led the manager to the cash office, the fourth man came back to the cashier and told her to "[s]tay down and don't move." As the three men began to empty the safe, the fourth man entered the room and told them to "[h]urry up, hurry up, hurry up" before finally telling them, "we got to go." The thieves then "grabbed the money and out the door they went."

Customers in the Winn-Dixie parking lot spotted the men running from the front entrance and piling into a small, light-colored vehicle; one of the men, who was of a smaller build, appeared to be dropping cash along the way. A customer in the parking lot attempted to pursue the vehicle to obtain a tag number, but broke off the pursuit near an adjacent apartment complex when someone inside the vehicle fired a gun at her. A couple unloading groceries at the apartment complex also heard what sounded like gunshots and saw someone running near the entrance to the complex carrying something rectangular. Shortly thereafter, police learned that several items connected to the robbery were found at the apartment complex, including cash drawers, assorted coins, and two ski masks. An officer collected those items and, on his walk back to the store, located more coins and two additional ski masks. The robbers took a total of $9,709 from the store.

At trial, Xavier Bell, Jockas Gilchrist, and Sydney Person - three of the five participants in the Winn-Dixie robbery - identified Gordon and Johnson as the two other perpetrators; Bell and Gilchrist had previously pled guilty to their roles in the robbery. Bell, who served as a lookout for the Winn-Dixie robbery, testified that he and Person traveled from neighboring Phenix City, Alabama to Columbus in a Jeep Cherokee driven by another individual he did not know. Gilchrist and Gordon were passengers in a silver Toyota Corolla that Johnson drove to the scene. Upon arriving, Bell and the driver stayed in the Jeep while Person went inside Winn-Dixie to "case" the store. The Jeep then left the scene and drove toward an adjacent apartment complex where Bell and the driver were to meet the others in the Corolla following the robbery. Gilchrist and Gordon entered the store from the Corolla; Gordon was armed with a Glock handgun, and Bell and Person identified Gordon at trial from surveillance footage by his red bandana. Johnson, armed with a semiautomatic rifle, then followed the others into the store.

Gilchrist and Gordon carried the cash out of the store, got into the Corolla with Johnson, and drove away. As the Jeep drove into the apartment complex moments later,^[3] Bell, Gilchrist, and Gordon ran toward the Jeep and got in, and the Jeep sped away, heading back to Phenix City. Gordon was carrying a red bandana in his hand.

May 5, 2012 Diamond Exchange Robbery. At approximately 3:00 p.m. on May 5, 2012, two men rushed into the Diamond Exchange pawn shop in Columbus, Muscogee County. The men were armed, dressed in black, wore bandanas over their faces, and demanded cash and guns. The first man, who appeared to be "[a] little over six [feet]" tall and of average build, approached a sales clerk and ordered her to load cash and guns into a black bag. He then took the clerk to the back of the store, took more cash from a safe, and loosely tied the clerk's hands behind her back with a zip tie.

Meanwhile, the second man, who had a smaller build and was wearing a red bandana, jumped over a counter, confronted a pawn broker, and told her to lie down or "he would shoot [her]." He then ordered her to open the counters and proceeded to place gold chains and watches in a black bag. A customer walked in on the robbery, and the second man ordered her to lie down; the customer had noticed a black sedan, later identified as a Lincoln LS, parked in front of the store as she entered. The first man emerged from the back of the store, said "let's go," and the two men fled the store in the black sedan. The pawn broker then telephoned 911. No useable fingerprints were discovered at Diamond Exchange. In all, the stolen items included gold chains with a combined value of $51,389.70, 36 handguns with a combined value of $11,064.60, watches with a combined value of $3,640.43, and $260.91 in cash.

Later that evening, Columbus police officers learned of an abandoned black Lincoln LS sedan parked in a highway median in Phenix City. The sedan had been involved in a chase with Phenix City police earlier that evening and crashed, resulting in the arrest of the driver, Johnson's cousin Dacquavian Solomon. Solomon and two other occupants who had been inside the vehicle at various times that evening, Kelsey Hixson and Daquarius Young, revealed that they traveled by taxi to Johnson's apartment late that afternoon and picked up the sedan from Johnson, who warned them, "you might want to be careful because this car is hot." Processing of the vehicle revealed fingerprints, which were later identified as belonging to Johnson. One of the handguns stolen during the Diamond Exchange robbery was found on Gordon's person by Phenix City police on May 31, 2012. In a March 28, 2013 interview with law enforcement, Gordon claimed that he purchased the handgun from Johnson for $60.

During their investigation, police learned that Gordon had previously pled guilty to the robbery of the La Mexicana restaurant in Columbus. A review of the security footage from the La Mexicana robbery depicted a smaller-built man, consistent with Gordon's description, leaping over a counter during the robbery. Similarly, the smaller-built man shown in the Diamond Exchange robbery also jumped over the counter. An officer testified that, in working hundreds of robberies in the Columbus area, only one involved a suspect leaping over a counter.

A Muscogee County grand jury indicted Gordon for multiple crimes related to the Diamond Exchange and Winn-Dixie robberies. At trial, Gordon offered alibi testimony from Shenika Warren, the mother of his child, that the two were together on May 5, 2012 celebrating their dating anniversary and that he was not present for the Diamond Exchange robbery. Notwithstanding Gordon's alibi defense, a jury returned guilty verdicts against Gordon on each count he faced, and the trial court denied his motion for new trial as amended. This appeal followed.^[4]

1. Gordon first contends that the evidence was insufficient to support his convictions for Counts 18 through 21 and 23, arising from the May 5, 2012 Diamond Exchange robbery, because the circumstantial evidence "failed to disprove" his alibi defense. He also asserts that the evidence of kidnapping during the April 11, 2012 Winn-Dixie robbery alleged in Count 16 was insufficient because the movement of the victim was incidental to the armed robbery itself, rather than forming the separate crime of kidnapping.^[5] Neither argument is persuasive.

Our standard of review is well-settled:

When reviewing the sufficiency of the evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307 (99 S.Ct. 2781, 61 L.Ed.2d 560) (1979). [We do] not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury's assessment of the weight and

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