Simon v. State

320 Ga.App. 15

739 S.E.2d 34

SIMON

v.The STATE.

McClain

v.The State.

Trim

v.The State.

Nos. A12A2056, A12A2171, A12A2460.

Court of Appeals of Georgia.

Feb. 27, 2013.

Brown & Gill, Angela Brown Dillon, for appellant (case no. A12A2056).

Maryann Faith Blend, for appellant (case no. A12A2171).

Clark & Towne, Jessica Ruth Towne, Lawrenceville, for appellant (case no. A12A2460).

Daniel J. Porter, Dist. Atty., Jimmie Eldridge Baggett, Jr., Asst. Dist. Atty., for appellee.

PHIPPS, Presiding Judge.

In connection with a home invasion, Walter Simon, Cortez McClain and Anthony Trim were tried together on charges of felony murder, armed robbery, burglary, aggravated assault, and false imprisonment.¹ Simon and McClain were found guilty of attempted armed robbery (as a lesser included offense of armed robbery), burglary, and false imprisonment, and not guilty of felony murder and aggravated assault; Trim was found guilty of attempted armed robbery (as a lesser included offense of armed robbery), burglary, aggravated assault, and false imprisonment, and not guilty of felony murder. Simon, McClain and Trim appeal, each challenging the sufficiency of the evidence to support his convictions. McClain also challenges the court's grant of the state's motion to excuse one juror for cause. Simon's and Trim's challenges are without merit, so we affirm their convictions. McClain's challenge to the grant of the motion to excuse the juror for cause has merit, so his convictions are reversed. However, because the evidence was sufficient to support McClain's convictions, McClain may be retried.²

Case No. A12A2056

1. Simon contends that the evidence was insufficient to support his convictions. We disagree.

When an appellant challenges “the sufficiency of the evidence, 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.” ³

Viewed in the light most favorable to the prosecution, the evidence showed the following. On June 16, 2010, Erick Moncrieffe was in the home of his friend, Travys Davy, when he heard the doorbell ring. Moncrieffe saw that McClain, whom he knew, was at the front door. Moncrieffe opened the door and, “a split second” later, two masked men came inside and put handguns to Moncrieffe's face. Moncrieffe was struck on the head or “pistol-whipped,” and ordered to walk to the kitchen. The three men followed Moncrieffe to the kitchen. Moncrieffe was ordered to open the garage door and sit down.

A woman then entered the house through the garage. Moncrieffe recognized the woman, who was not masked, as someone who had previously visited the house with McClain. Using black masking or duct tape, the woman bound Moncrieffe's hands and covered his eyes.

Moncrieffe was ordered to tell Davy, who was upstairs, to come downstairs. Moncrieffe did not comply, and he was pistol-whipped repeatedly; he sustained injuries to his head. Davy heard the commotion and, when he looked out of his bedroom door, saw a masked gunman. Davy stayed upstairs; he retrieved a rifle and directed another resident to call police.

Moncrieffe was ordered to “kick it out,” which Moncrieffe was told meant “give me your stuff.” The intruders stood over Moncrieffe and repeated their demands, saying, “Tell him to come downstairs; you won't make it.” They continued to pistol-whip him. Moncrieffe's wallet (which contained cash) and his cell phone were taken. McClain had said nothing during the incident. The intruders left about 30 minutes after they had entered the house.

Moncrieffe then managed to remove the tape from his hands and head, and he ran through the house. He grabbed the rifle from Davy, who had come downstairs. Davy opened the front door and heard police sirens. Moncrieffe and Davy went outside, where they saw a vehicle in front of the house. Two people hurriedly entered the vehicle.

Shots were fired from the vehicle as it was being driven away. When Moncrieffe was asked at trial if he could see whether the occupants of the vehicle were the people who had just been in the house, he replied that he saw the mask, and said or thought, “that's them.” Moncrieffe added that he recognized the vehicle (“like a Buick ... an old car”) as one that had been at the house two days earlier. Moncrieffe returned fire, and the vehicle left the neighborhood.

A police officer responding to a “shots fired” call at about 2:00 p.m. on the date of the incident observed a 1993 (“older”) Lincoln automobile traveling at a high rate of speed; the vehicle was leaving Davy's subdivision as the officer was entering the subdivision. The officer observed that the vehicle had a bullet hole in the rear window and was occupied by several males. With the siren and emergency lights on his police vehicle activated, the officer pursued the vehicle. The pursued vehicle crashed, and the officer, who was the first officer to arrive on the scene, saw a man with “dreads” jump out of the rear door of the vehicle and run away; at trial, Davy described McClain as having “dreads” (and the state introduced photographs of McClain, with his hairstyle visible, taken days after the incident). Four individuals remained in the vehicle; Simon was the driver, and Trim and Casey were the rear passengers. The passenger in the front seat of the vehicle, Devonte Bowles, was wearing a mask and was not moving; he had sustained a gunshot wound to the head and later died as a result of the injury.⁴

A police corporal also responded to the dispatch call. He saw “a mid 90s model” Lincoln automobile traveling erratically and at a high rate of speed. With the siren and emergency lights on his vehicle activated, he began pursuing the vehicle. The corporal then saw the pursued vehicle leave the roadway and crash. At the crash site, the corporal observed that the injured front-seat passenger, Bowles, was wearing a mask. Officers found two handguns at the crash site—one on the ground near the vehicle, and another in the front passenger seat area of the vehicle. The vehicle was equipped with hand controls that allowed it to be operated without foot pedals; Simon told police he had been paralyzed as a result of an earlier injury and was unable to walk.

In an interview conducted on the day of the incident, Simon told a police detective that he had been asked to drive his vehicle to Davy's house to buy marijuana, and that Bowles and Casey were with him. Simon said that he had waited in the driveway while the vehicle's other occupants went inside the house, and that when they exited the house, Bowles was wearing a mask. After they entered the vehicle, a man exited the house and began shooting at the vehicle.

In another interview conducted the same day, Trim, after being advised of and waiving his Miranda rights, admitted to a police detective that “a plan to do this” was discussed in the vehicle during the drive to Davy's house; that Trim and Bowles had exited the vehicle and entered the house wearing masks and carrying guns; that a woman had the duct tape and a knife; that the intruders had fled without taking property because someone had said that the police were coming; and that he and the woman were in the back seat of the vehicle and Bowles was in the front seat when they left Davy's house.

The night before the incident, McClain, whom Davy had known for several years, had visited Davy's home. McClain had been accompanied by Casey and a man; the man stayed in the vehicle during that visit; the group was in the same vehicle that was at Davy's house on the day of the incident. The day before the incident, Davy had received $40,000 in cash in connection with a music production deal, and most of the money was in the house; Davy had shared this information with McClain.

OCGA § 16–8–41(a) pertinently provides that a person commits the offense of armed robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another by use of an offensive weapon. A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.⁵ The indictment alleged that Simon, McClain and Trim committed armed robbery when they unlawfully, with intent to commit theft, took Moncrieffe's currency and cell phone from his person, by use of a handgun.

OCGA § 16–7–1⁶ pertinently provided that a person commits the offense of burglary when he, without authority and with the intent to commit a felony or theft therein, enters or remains within the dwelling house of another. The indictment pertinently alleged that Simon, McClain and Trim committed that offense by unlawfully, without authority, and with the intent to commit a theft therein, entering the dwelling house of another.

OCGA § 16–5–21(a)(2) pertinently provides that a person commits the offense of aggravated assault when he assaults with a deadly weapon or with any object which, when used offensively against a person, is likely to or actually does result in serious bodily injury. The indictment pertinently alleged that Simon, McClain and Trim committed aggravated assault by assaulting Moncrieffe with a handgun which, when used offensively against a person is likely to result in serious bodily injury, by striking him in the head with the gun and threatening to kill him.

OCGA § 16–5–41(a) provides that a person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines or detains such person without legal authority. The indictment alleged that Simon, McClain and Trim committed false imprisonment by unlawfully, in violation of Moncrieffe's personal liberty, confining Moncrieffe without legal authority.

Simon asserts that the evidence was insufficient because the state failed to prove that he knew that an armed...