Johnson v. State

340 Ga.App. 429

797 S.E.2d 666

JOHNSON

v.THE STATE.

A16A1844

Court of Appeals of Georgia.

March 1, 2017

Katherine Morgan Mason, for Appellant.

Rindi L. Harbeson, Kevin Richard Majeska, William Patrick Doupe', Dennis C. Sanders, Thomson, for Appellee.

Rickman, Judge.

Cortavious Deshun Johnson was tried by a jury and convicted of armed robbery¹ and possession of a firearm during the commission of a felony (armed robbery).² On appeal, Johnson contends that the evidence was insufficient to support his convictions beyond a reasonable doubt. Johnson also contends that the trial court abused its discretion by admitting other-acts evidence pursuant to OCGA § 24-4-404 (b) and when it did not excuse an entire panel of potential jurors after an issue with one potential juror during voir dire, and he received ineffective assistance of counsel. For the following reasons, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to support the jury's verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or judge the credibility of the witnesses, but determine only whether the evidence authorized the jury to find the defendant guilty of the crimes beyond a reasonable doubt in accordance with the standard set forth in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

(Citation and punctuation omitted.) Hall v. State , 335 Ga.App. 895, 783 S.E.2d 400 (2016).

So viewed, the evidence shows that, on the afternoon of October 31, 2014, Johnson approached the victim while she was working at a bank as a teller, and he pushed a card towards her. The card read, "Put The Money in The Bag Or Die." The victim thought that Johnson may be pulling a Halloween prank, but when she asked if he was kidding, he shook his head negatively. The victim again questioned Johnson about his intentions and "he stepped back, he pulled up his shirt, and he showed [her] a gun."

Johnson yelled out "now" and put a bag on the counter in front of the victim. The victim, fearing that Johnson was going to shoot her, picked up the bag, and began to put money in it. As the victim filled the bag with money, Johnson yelled for her to "hurry up, hurry up, hurry up, hurry up," followed by "hundreds, hundreds, hundreds." While Johnson yelled at the victim to grab hundred dollar bills, she put bait money in the bag that was hooked to an alarm system at the bank. At some point, Johnson grabbed the bag from the victim and ran out of the bank.

Another customer at the bank, who was speaking with a different teller, witnessed the victim show a note to the other teller and question if the note was a joke. The customer then observed Johnson raise his shirt to reveal a gun.

A special agent with the Georgia Bureau of Investigation who was investigating the armed robbery, facilitated the release of surveillance photographs depicting the subject who committed the armed robbery to the media. The special agent received information that the person in the surveillance photographs was Johnson. Later in the day, the special agent received information that Johnson may be in the company of a female companion. The special agent was able to receive data from Johnson's female companion's cell phone which revealed her location.

Later in the evening on the date of the armed robbery, a Georgia State Patrol trooper was driving on the highway when he received information that he was near the location of a vehicle in which Johnson may be traveling. Following a police chase involving that vehicle, Johnson was apprehended. A search of the vehicle Johnson was driving was conducted pursuant to a search warrant by a special agent in charge ("SAC") with the Georgia Bureau of Investigation. The SAC recovered cash money from the vehicle including $20 bills that matched the serial numbers on the bait money given to Johnson. In the trunk of the vehicle, the SAC found Johnson's driver's license, along with a loaded pistol.

Four witnesses testified as to two other acts pursuant to OCGA § 24-4-404 (b). The first two other acts witnesses testified about an incident that took place in March 2013. Two women testified that a man pulled a gun and pointed it toward their vehicle during a "road rage" incident while they were driving. Both women identified Johnson as the man who pointed the gun at them.

The second incident took place in South Carolina in August 2014. A woman went to her workplace to cash her paycheck. After cashing her paycheck, she got into her vehicle and a man approached her window. The man asked for her phone number and as she was putting her number into his cellular phone, he pointed a gun at her, and ordered her to give him her money. After the woman heard the gun "click," she gave him money and her phone. The woman identified Johnson as the man who robbed her when given a photographic line-up and when testifying at the trial of this case.

The grand jury returned an indictment charging Johnson with armed robbery, possession of a firearm during the commission of a crime (armed robbery), aggravated assault, and possession of a firearm during the commission of a crime (aggravated assault). Johnson was tried by a jury and found guilty of all the crimes that were charged; the trial court merged his convictions for aggravated assault and possession of a firearm during the commission of a felony (aggravated assault) into his convictions for armed robbery and possession of a firearm during the commission of a felony (aggravated assault) for the purpose of sentencing. Johnson timely filed a motion for new trial, which was denied. It is from this order that Johnson now appeals.

1. Johnson contends that the evidence was insufficient to support his convictions. Specifically, Johnson contends that there was insufficient

proof that he used a handgun during the robbery because he only showed the victim a handgun tucked into his pants. We disagree.

OCGA § 16-8-41 (a) provides, in pertinent part, that "[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."

The evidence at trial showed that [Johnson] lifted his shirt and showed the victim a gun when he demanded [money from the victim]. While it is true that [Johnson] did not pull the weapon out of his pants, [Johnson's] display of the gun handle was sufficient to create a reasonable apprehension on the part of the victim that [Johnson] was using an offensive weapon and to cause [her] to comply with [Johnson's] demand for money.

(Punctuation omitted.) Price v. State , 289 Ga.App. 763, 765 (1), 658 S.E.2d 382 (2008).

Furthermore, "[w]here a robbery is committed by the use of a firearm, separate convictions for armed robbery and possession of a firearm during the commission of a crime are specifically authorized by OCGA § 16-11-106 (e)." (Citation omitted.) Broyard v. State , 325 Ga.App. 794, 797 (1) (b), 755 S.E.2d 36 (2014). Thus, the evidence was sufficient to support Johnson's conviction for armed robbery and possession of a firearm during the commission of a crime (armed robbery). See id. at 797-798 (1) (b), 755 S.E.2d 36 ; see also Price , 289 Ga.App. at 765 (1), 658 S.E.2d 382 ; Forde v. State , 277 Ga.App. 410, 412 (1), 626 S.E.2d 606 (2006).³

2. Johnson contends that the trial court abused its discretion by admitting other

acts evidence pursuant to OCGA § 24-4-404 (b).

OCGA § 24-4-404 (b) provides, in pertinent part,

Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

In addition, under OCGA § 24-4-403, "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

Georgia has adopted the Eleventh Circuit three-prong test to determine the admissibility of evidence of other crimes and acts under OCGA § 24-4-404 (b) :

(1) the evidence must be relevant to an issue other than defendant's character; (2) the probative value must not be substantially outweighed by undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.

(Citation, punctuation, and footnote omitted.) Bradshaw v. State , 296 Ga. 650, 656 (3), 769 S.E.2d 892 (2015). A trial court's decision on whether to admit evidence under OCGA § 24-4-404 (b) and OCGA § 24-4-403 is reviewed for a "clear abuse of discretion." Id.

(a) Prong one: The trial court allowed the State to introduce evidence of two other acts for the limited purpose of showing Johnson's "intent to ... use a firearm." "A culpable state of mind—intent or criminal negligence—is an essential element of every crime." (Citation omitted.) Olds v. State , 299 Ga. 65, 72 (2), 786 S.E.2d 633 (2016).

In both of the other acts, Johnson was alleged to have used a gun in an offensive manner against others. The March 2013 incident where Johnson allegedly pointed a gun at two women who were driving a vehicle, an act which could be considered an aggravated assault, and the August 2014 incident where Johnson demanded money from a woman while pointing a gun at her, an act which could be considered an armed robbery, both involve the same intent as required to prove crimes Johnson was charged with in this case. Thus, the other acts were "relevant" and satisfy the first prong for the admission of such evidence. See Graham v. State , 337 Ga.App. 664, 669 (2), 788 S.E.2d 555 (2016) ; see also Olds , ...