Parker v. State

353 Ga.App. 493

838 S.E.2d 150

PARKER

v.The STATE.

A19A2312

Court of Appeals of Georgia.

January 24, 2020

Thomas Michael Florio, Jonesboro, for Appellant.

John Evans Fowler, Tasha Monique Mosley, Tracy Graham Lawson, Charles Anthony Brooks, Elizabeth Conard Rosenwasser, for Appellee.

Mercier, Judge.

A jury found James Parker guilty of armed robbery, four counts of aggravated assault, and two counts of possessing a weapon during the commission of a crime. The trial court merged three of the aggravated assault charges into other counts and sentenced him for armed robbery, one count of aggravated assault, and the two weapons offenses. Parker appeals the denial of his motion for new trial, challenging the sufficiency of the evidence supporting three of his convictions. He also argues that the trial court erred in severing his trial from that of his co-defendant, admitting certain evidence, and instructing the jury. Finally, he claims that he received ineffective assistance of counsel at trial. We affirm.

1. In reviewing a challenge to the sufficiency of the evidence, we construe the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. See Bryson v. State, 316 Ga. App. 512, 729 S.E.2d 631 (2012). We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the jury was authorized to find the defendant guilty of the charged offenses beyond a reasonable doubt. See id.

So viewed, the evidence shows that in June 2014, O. C. saw an advertisement for the sale of a television on Craigslist. He decided to purchase the television, and he and his wife, M. M., traveled to a designated location in Clayton County to complete the transaction. Once there, they met with Parker and a woman. O. C. verified that the television worked, paid the woman for it, then indicated to Parker that "it was a good deal and [he] would like to see one or two more" televisions to purchase. Parker responded that he had a friend who could sell O. C. additional televisions. O. C. gave Parker his phone number, and Parker promised to contact him with more information.

Parker subsequently called O. C. about the additional televisions, and they arranged to meet at a Clayton County apartment complex on June 18, 2014. O. C. traveled to the meeting location with M. M. and their three children in the family’s minivan. Parker greeted them in the complex parking lot, asking O. C. to go with him to an apartment to look at the merchandise. O. C. parked, left his family in the van, and walked with Parker. As they approached the apartment, Parker stopped to talk with another man, who was later identified as Matthew Hood. O. C. heard Hood tell Parker to bring O. C. "further back." Suspicious, O. C. stepped away from Parker and stated that he no longer wanted to purchase the televisions. Both men grabbed O. C., pulling him out of view of his car and family. Hood pointed a gun at O. C., and Parker asked O. C. for money, then put his hands in O. C.’s pockets. Finding nothing, Parker demanded to know where O. C. had put the money for the televisions. O. C. responded that it was in his vehicle.

Parker went to the minivan to get the money, leaving O. C. with Hood. Parker told M. M. to give him the money, but she refused to unlock the vehicle’s doors. When Parker returned to the apartment building without the money, he and Hood began to argue, and Hood threatened O. C. with the gun. Imploring them not to hurt him or his family, O. C. told the men that he had $1,500 in the minivan that he would give them if they let him go. The men pulled and pushed O. C. to the minivan, each grasping one of O. C.’s arms. O. C. asked his wife to roll down the window, then told her to give them the money. M. M. was crying, and Hood still had a gun in his hand, though it was "kind of hidden." As M. M. described:

My husband told me to roll down the window and give them the money. He told me, give me the money. When I was looking at him his face was pale and his eyes were kind of lost in space. It was really strange. It was like he [was] telling me it was pretty much the end, so I reached for the money, I took it out of the purse and then [Hood] took it from me.

The two men left with the money, and O. C. and his family fled in the minivan, stopping at the first gas station they found to call the police.

Detectives interviewed Parker, who denied taking part in the crimes, but admitted that he was present during the first sales transaction, later spoke with O. C. about additional televisions, and gave O. C.’s phone number to Hood. According to Parker, Hood and another man he identified only as "DC" set up the second meeting and carried out the crimes. Both O. C. and M. M., however, positively identified Parker as one of the robbers.

Parker and Hood were indicted jointly for numerous offenses relating to the incident. The trial court ultimately determined that they should be tried separately, and the jury found Parker guilty of the armed robbery of M. M. (Count 1), two counts of aggravated assault of M. M. (Count 2 (assault with intent to rob) and Count 3 (assault with a deadly weapon)), two counts of aggravated assault of O. C. (Count 4 (assault with intent to rob) and Count 5 (assault with a deadly weapon)), and two counts of possessing a weapon during the commission of a crime (Count 6 (possession during the aggravated assault of M. M.) and Count 7 (possession during the aggravated assault of O. C.)).¹ Parker challenges the sufficiency of the evidence supporting his convictions on Counts 1, 3, and 6, all of which involved M. M.

(a) Armed Robbery . An armed robbery occurs "when, with intent to commit theft, [an individual] 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). With respect to this offense, Count 1 of the indictment alleged that Parker and Hood took money from the immediate presence of M. M. "by use of an article having the appearance of a gun[.]

On appeal, Parker argues that the evidence was insufficient to support his conviction on this count because the State failed to prove that M. M. saw a gun. Circumstantial evidence, however, "is sufficient to establish the use of a weapon or device appearing to be a weapon, and a conviction for armed robbery may be sustained even though the weapon or article used was neither seen nor accurately described by the victim" Bryson, supra at 515 (1), 729 S.E.2d 631. The State need not prove that the victim saw the weapon; it must only demonstrate that the victim "had a reasonable apprehension that an offensive weapon was used." Id, ; see also Rice v. State, 351 Ga. App. 96, 98 (1), 830 S.E.2d 429 (2019) ("Some physical manifestation is required or some evidence from which the presence of a weapon may be inferred, but OCGA § 16-8-41 (a) does not require proof of an actual offensive weapon.") (citation and punctuation omitted).

O. C. testified that Hood was holding a gun when Hood and Parker walked him to the minivan to retrieve the money, and Hood had the gun out as he stood with O. C. next to the van, approximately four feet from M. M. Although M. M. did not definitively see the gun, she noticed "something shiny" that appeared to possibly be a pistol or knife in Hood’s hand. M. M. also testified that she thought Parker and Hood "were going to do something to us" when they pushed her husband toward the van, and seeing the object in Hood’s hand made her fearful. Given these circumstances, particularly Hood’s use of the gun to control O.C., M. M.’s observation of an object in Hood’s hand that she thought might be a pistol, and her fear that the men were going to hurt her family, the jury was authorized to find Parker guilty beyond a reasonable doubt of armed robbery as alleged in Count 1 of the indictment. See Rice, supra (conviction for armed robbery of taxi driver upheld; "[a]lthough [driver’s] testimony at trial was that he believed that [the defendant] may have threatened him with [a pointed finger hidden under a shirt], he also testified that he complied with [the defendant’s] orders to hand over his money because he was not positive that [the defendant] did not have a gun"); see also OCGA § 16-2-20 (a) ("Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.").

(b) Aggravated Assault. Parker also challenge his conviction under Count 3 of the indictment, which alleged that he assaulted M. M. with a gun. The trial court, however, merged this charge into Count 1 (armed robbery). Parker’s claim that the evidence was insufficient as to Count 3, therefore, is moot. See Long v. State, 287 Ga. 886, 888 (1), 700 S.E.2d 399 (2010).

(c) Possession of a Weapon During the Commission of a Crime. Pursuant to OCGA § 16-11-106 (b) (1), a person commits a felony when he or she has "on or within arm’s reach of his or her person a firearm ... during the commission of, or the attempt to commit ... [a]ny [felony] against or involving the person of another." Count 6 of the indictment charged that Parker and Hood had a firearm within arm’s reach "during the commission of the crime of aggravated assault against the person of [M. M.]."

Once again, Parker argues that this conviction cannot stand because M. M. "never observed a weapon" and did not clearly identify the object in Hood’s hand. Among other things, however, Parker was charged with and convicted of committing aggravated assault by assaulting M. M. with the intent to rob. See OCGA § 16-5-21 (a) (1). And the evidence shows that Parker and Hood brought O. C. to the minivan under duress with the purpose of taking money from M. M. During the encounter, M. M. saw a shiny object in Hood’s hand that she thought was possibly a gun, making her fearful that the two men intended to injure her and...