Powell v. State

352 Ga.App. 14

833 S.E.2d 602

POWELL

v.The STATE.

A19A1091

Court of Appeals of Georgia.

September 23, 2019

Cynthia Wright Harrison, for Appellant.

Sherry Boston, District Attorney, Shannon E. Hodder, Deborah D. Wellborn, Assistant District Attorneys, for appellee.

Reese, Judge.

A DeKalb County jury found Darien Powell guilty of armed robbery.¹ He was sentenced to serve a total of twenty years, with the first ten years in confinement, and the remainder to be served on probation. Following a denial of his motion for new trial, he files this appeal, arguing that there was insufficient evidence to support his conviction, and that the indictment contained a fatal defect. He also contends that the trial court erred by: admitting evidence of a surveillance video; failing to grant a mistrial based on the surveillance video; failing to instruct the jury on the lesser included charge of robbery; and commenting on the evidence. For the reasons that follow infra, we affirm.

Viewed in the light most favorable to the jury's verdict,² the record shows that, on the evening of September 29, 2014, B. S. worked as a manager for Inserection, a store that sold, among other items, smoke paraphernalia. Around 9:00 p.m., while B. S. counted money on a store countertop, a man, whom he later identified as the Appellant, entered the store. According to B. S., the Appellant wanted to look at a water pipe. B. S. asked the Appellant for identification and observed that he was at least 18 years old. After the Appellant presented a state identification card, B. S. spent about 15 minutes showing him some pipes, which were located behind B. S. According to B. S., the Appellant told him that "he would be right back[, because he] wanted to get his money out of the car." When the Appellant returned, B. S. was still counting money. B. S. testified that the Appellant asked to "look at the items again," and chose a pipe to purchase. B. S. told another store employee to "ring [the Appellant] up," as B. S. turned his head away from the counter to return a pipe that the Appellant did not want to purchase. B. S. testified that the Appellant then "snatched [the] money off the countertop," and as B. S. turned back around, the man "had [a] gun pointed directly in [B. S.’s] face," then the Appellant ran out of the store.

E. M. testified that she was also working at Inserection the evening of September 29, 2014. She testified that she and B. S. were standing behind the store counter when the robber, whom she later identified as the Appellant, initially entered the store. E. M. saw B. S. show the Appellant some pipes, and heard the Appellant state that he "would have to step outside and get some money to purchase the [pipe]." She further testified that the Appellant returned to the store with a gun, pointed the gun at her, and told her to "get down[.]" The Appellant then pointed the gun at B. S. who "froze up[,]" and took the money from the countertop.

After a jury found him guilty of armed robbery, the Appellant filed a motion for new trial, which the trial court denied after a hearing. This appeal followed.

On appeal from a criminal conviction, the appellate court

view[s] the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. [The reviewing court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia ,^{[3 ]} and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State's case, [the reviewing court] must uphold the jury's verdict.⁴

"The standard of Jackson v. Virginia is met if the evidence is sufficient for any rational trier of fact to find the defendant guilty beyond a reasonable doubt of the crimes charged."⁵ With these guiding principles in mind, we turn now to the Appellant's specific claims of error.

1. The Appellant argues that the evidence was insufficient for a rational trier of fact to find him guilty of armed robbery because the gun "was not used to effectuate the taking [of the money] in this case," citing to Hicks v. State⁶ as authority. Specifically, the Appellant contends that the robber took the money from the countertop while B. S.’s back was turned and before B. S. saw the gun.

An individual commits 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."⁷

We find Hicks distinguishable from the instant action. In Hicks , the Supreme Court of Georgia ruled that the defendant did not commit armed robbery when he took the victim's wallet while she slept because the offensive weapon was not used to commit that particular crime, even though it was later used in subsequent crimes.⁸ In contrast, E. M. testified that B. S. froze when the Appellant pointed a gun at B. S. and then took the money. Further, both B. S. and E. M. identified the Appellant as the robber.⁹ "[A] jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it."¹⁰

As explained fully in Division 2, infra, the evidence supports a finding that the Appellant took the money from B. S.’s immediate presence by using a weapon. We conclude that the evidence presented was sufficient for a rational trier of fact to find the Appellant guilty of the armed robbery beyond a reasonable doubt.¹¹

2. The Appellant argues that a fatal variance¹² existed as to the averments in the indictment and the evidence at trial. Specifically, the Appellant contends that the evidence showed the perpetrator took the money from the store's countertop and not from "the person of [B. S.]," as alleged in the indictment.

OCGA § 16-8-41 (a) states, in pertinent part, that armed robbery is committed by the taking of "property of another from the person or the immediate presence of another. ..." The Supreme Court of Georgia has interpreted "immediate presence of another" to mean,

not that the taking must necessarily be from the actual contact of the body, but if it is from under the personal protection that will suffice. Within this doctrine, the person may be deemed to protect all things belonging to the individual, within a distance, not easily defined, over which the influence of the personal presence extends. In cases of this type, all of the victim's property is, in contemplation of law, upon the person of the owner, which is, at the time of taking, in the immediate presence of the owner, or is so near at hand, or stored in such position, that, at the time of taking, it is under the immediate personal protection of the owner. If the goods are in that condition, then they are, within the contemplation of the law, upon the person of the owner.¹³

Here, the evidence showed that the money taken from the store was on the countertop, in the "immediate presence" and in the "immediate personal protection" of the store manager.¹⁴ Thus, there was no fatal variance between the indictment and the evidence presented.¹⁵

3. The Appellant argues that the trial court erred in permitting the State to introduce evidence of a purported surveillance video and in failing to grant a mistrial. For the reasons that follow, we disagree.

The record shows that during trial, an officer who worked for the City of Clarkston Police Department ("Department") was called to the scene to investigate the armed robbery. He testified that he reviewed video footage of the robbery that had been captured by a surveillance camera in the store. Defense counsel raised a "best evidence" objection to the testimony. The State responded that the video "evidence [had been] lost." The trial court overruled the objection, and the officer testified that because he had been unable to obtain a copy of the surveillance video from the store, he recorded "a video of [the] video," using his Department-issued cell phone, and that he then downloaded the video onto the Department's system. The officer testified that when he left the Department he had returned the cell phone to the Department.¹⁶ The officer, however, identified the Appellant as the robber he had seen in the video.

Trial counsel objected again, and the trial court removed the jury from the courtroom and conducted a hearing on the objection. During the hearing, defense counsel requested a mistrial or "at the very least, ... a curative instruction ... to disregard [the] testimony that [the officer] saw [the Appellant] on the video." The State responded that the officer's identification of the Appellant based on the video was unintentional and was not in response to a question. The State agreed that a curative instruction would be appropriate. The trial court ruled that it would give a curative instruction for the jury to "disregard [the officer's] identification of the [Appellant] in any video footage [and] that the law requires that the jury decide identification, ... not the witness," and denied the Appellant's motion for a mistrial. The Appellant did not object to the trial court's ruling or renew his motion for a mistrial.

"It is well settled that where a defendant objects and moves for mistrial and the trial court denies the motion but takes some corrective action, if the defendant is dissatisfied with that action, he must renew the objection or motion."¹⁷ Here, the Appellant failed to do either and thus has waived appellate review of this matter.¹⁸

4. The Appellant contends that the trial court erred in failing to instruct the jury on the lesser included charge of robbery. Specifically, the Appellant contends that the robbery was complete before he pointed the gun at B. S. and that a jury instruction on robbery was required...