SECOND DIVISION
ANDREWS, P. J.,
MILLER, P. J., and BRANCH, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
March 16, 2016
In the Court of Appeals of Georgia
A15A1974. BYNES v. THE STATE.
BRANCH, Judge.
On appeal from his conviction for armed robbery and harming a police dog,
Devante Bynes argues that the evidence was insufficient and that the trial court erred
when it refused Bynes’s requests for charges on the justified use of force in self-
defense and theft by intimidation as a lesser included offense. We find no merit in
these assertions, but we vacate the portion of Bynes’s sentence pertaining to his
conviction for harming a police dog, which imposed a greater sentence than that
allowed by law, and remand for resentencing.
“On appeal from a criminal conviction, we view the evidence in the light most
favorable to the verdict, with the defendant no longer enjoying a presumption of
innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation
omitted). We neither weigh the evidence nor judge the credibility of witnesses, but
determine only 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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B)
(99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).
So viewed, the record shows that late on the evening of May 21, 2013, a man
locked up the Savannah restaurant where he worked and began walking home through
a local park. As the man did so, he noticed that Bynes and two other men, all of whom
were dressed in dark clothing, were approaching him from behind. Bynes stepped in
front of the victim and aimed a gun at his face. The second man ordered the victim
to hand over his possessions “or we’re f***king going to shoot you”; the third man
stood behind the victim. Bynes and his confederates then rummaged through the
victim’s pockets and backpack, taking his watch, wallet, cell phone, keys, and the
backpack. The men then ordered the victim to run away or risk being shot. As he ran,
the victim first saw a young man on a skateboard and then a pedestrian, whom the
victim asked to call 911. As the pedestrian did so, the victim looked back and saw the
same three robbers surround the skateboarder. The robbers pointed a gun at the
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second victim, demanded all his possessions, and obtained his backpack, cell phone,
some marijuana, and $10 in cash.
A police detective in an unmarked patrol car with its lights out also witnessed
three men surround and rob the second victim. As the robbers fled, the detective
pursued them slowly by car for several blocks, noting that Bynes was wearing a
sleeveless undershirt and appeared to be hiding something under it. When the robbers
realized that they were being followed, they began running in different directions.
The detective parked his patrol car, activated his lights, ordered the men to stop, and
ran after one of Bynes’s co-defendants, Josephewa Ramsey. After apprehending
Ramsey, the detective went to the assistance of a canine officer, who had already
apprehended co-defendant Devon Tarver and was now pursuing Bynes.
When the police dog tracked Bynes to a crawl space under a residence, the
canine officer ordered the dog to go into the space and to bite Bynes, which the dog
did. Before the canine officer issued a stop command, Bynes put his hands around the
dog’s neck and began twisting its neck. The canine officer told Bynes to stop fighting
the dog, but Bynes did not do so. Instead, he continued to choke the dog until it lost
consciousness and went limp. The canine officer then pulled the dog out of the crawl
space and immediately took it to an animal hospital, where the dog recovered from
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its injuries. The detective apprehended Bynes, who had suffered bite injuries to his
legs and was bleeding. A search of the area produced keys, a cell phone, and a black
wallet belonging to the first victim. In a cinder block near the park, police also
recovered a black pistol with a magazine clip. The first victim identified Bynes at the
scene as the man who had robbed him at gunpoint, and the detective identified Bynes
as one of the men who had surrounded the second victim.
Bynes was charged with two counts of armed robbery and one count each of
obstruction, harming a police dog, and escape. The trial court granted a directed
verdict as to the obstruction count, and the escape count was nolle prossed. A jury
found Bynes guilty of both counts of armed robbery and the count of harming a police
dog. Bynes was convicted and sentenced to life in prison with 5 years to serve
concurrently for harming the police dog. His motion for new trial was denied.
1. Bynes argues that the evidence was insufficient to support his conviction as
to both (a) armed robbery and (b) harming a police dog. We disagree.
(a) Bynes attacks the jury’s verdict as to the armed robbery counts by pointing
out inconsistencies in the evidence against him and by attacking the credibility of the
witnesses. Such matters are for the jury, and not this Court, to resolve. See Hogan v.
State, 330 Ga. App. 596, 598 (1) (a) (768 SE2d 779) (2015). The evidence here
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included the first victim’s testimony that Bynes pointed a gun at him and demanded
his possessions, the detective’s testimony that he saw Bynes and the two other
robbers attack the second victim, the second victim’s testimony that he was also
robbed at gunpoint, and Bynes’s presence at and flight from the scene. This evidence
was sufficient to sustain Bynes’s conviction for armed robbery. Jackson, supra;
Hogan, 330 Ga. App. at 598 (1) (a) (victim’s testimony that defendant robbed him
with a gun was sufficient to sustain a conviction for armed robbery); Drake v. State,
266 Ga. App. 463, 465 (1) (597 SE2d 543) (2004) (defendant’s conduct before,
during, and after an armed robbery supported a finding that he was guilty of aiding
and abetting that crime).
(b) Bynes was charged with violating OCGA § 16-11-107 in that he
“knowingly and intentionally cause[d] serious physical injury” to the dog in question.
OCGA § 16-11-107 defines the offense of harming a law enforcement animal in four
degrees, including as follows:
(b) A person commits the offense of harming a law enforcement
animal1 in the fourth degree when he or she knowingly and intentionally
1
OCGA § 16-11-107 (a) (6) defines a “patrol dog” as “a dog trained to protect
a peace officer and to apprehend or hold without excessive force a person in violation
of the criminal statutes of this state”; subsection (a) (7) defines a “police dog” as
including “a patrol dog” as well as “a tracking dog used by a law enforcement
agency.”
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causes physical harm to such law enforcement animal while such law
enforcement animal is in performance of its duties or because of such
law enforcement animal’s performance of its duties. Any person
convicted of a violation of this subsection shall be guilty of a
misdemeanor of a high and aggravated nature and, upon conviction
thereof, shall be punished by imprisonment not to exceed 12 months, a
fine not to exceed $5,000.00, or both.
(c) A person commits the offense of harming a law enforcement
animal in the third degree when he or she knowingly and intentionally
and with a deadly weapon causes, or with any object, device,
instrument, or body part which, when used offensively against such law
enforcement animal, is likely to or actually does cause, serious physical
injury to such law enforcement animal while such law enforcement
animal is in performance of its duties or because of such law
enforcement animal’s performance of its duties. Any person convicted
of a violation of this subsection shall be guilty of a misdemeanor of a
high and aggravated nature and, upon conviction thereof, shall be
punished by imprisonment for not less than six nor more than 12
months, a fine not to exceed $5,000.00, or both.
(d) A person commits the offense of harming a law enforcement
animal in the second degree when he or she knowingly and intentionally
shoots a law enforcement animal with a firearm or causes debilitating
physical injury to a law enforcement animal while such law enforcement
animal is in performance of its duties or because of such law
enforcement animal’s performance of its duties. Any person convicted
of a violation of this subsection shall be guilty of a felony and, upon
conviction thereof, shall be punished by imprisonment for not less than
one nor more than five years, a fine not to exceed $25,000.00, or both.
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(Emphasis supplied.) As we have noted in other contexts, the question whether a
bodily injury is serious or debilitating is one for the jury to decide. See, e.g., Sims v.
State, 296 Ga. App. 461, 462 (1) (675 SE2d 241) (2009) (evidence that defendant
struck victim with his fists was sufficient to sustain his conviction for aggravated
assault because fists are objects which, “when used offensively against another
person,” are likely to result in serious bodily injury). “Hands and fists may be deadly
weapons depending upon the circumstances, including the extent of the victim’s
injuries.” Id. at 462 (punctuation and footnote omitted).
Bynes argues that the State did not prove that he knew that the dog that bit him
was a police dog and that there was insufficient evidence of serious injury. The
evidence showed, however, that Bynes was in flight from the police when he hid in
a crawl space, that the officer ordered Bynes to let go of the dog, and that the dog lost
consciousness as a result of Bynes’s application of a chokehold on the animal.
Accordingly, this jury was authorized to conclude that Bynes was guilty of knowingly
and intentionally causing serious physical injury to the police dog at issue here.
2. Although Bynes has not raised the matter on appeal, our review of the record
shows that the five-year portion of his sentence for harming a police dog exceeded
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the statutory guidelines for the crime with which he was charged. Because Bynes’s
sentence on this charge was therefore void, we vacate that portion of his sentence and
remand for resentencing.
Bynes was indicted under OCGA § 16-11-107, without reference to a
subsection, for “the offense of harming a police dog” in that Bynes, “on or about the
21st day of May, 2013, did knowingly and intentionally cause serious physical
injury” to the police dog in question. (Emphasis supplied.) See OCGA § 16-11-107
(c), (d) (distinguishing between second- and third-degree harm to a police dog by
whether the dog received “serious” or “debilitating” physical injuries). Bynes was not
charged, in other words, with causing debilitating physical injury to the dog. Id.
At the outset of its charge to the jury, the trial court noted only that Bynes had
been indicted for offenses including that of “harming a police dog,” and that “the
indictments on the one hand and [the defendants’] pleas of not guilty on the other
hand form the issues that you are about to decide in this case.” The trial court also
noted that a copy of the indictment would be sent out during the jury’s deliberations.
The trial court later charged the jury, however, that the crime of harming a police dog
consisted of “knowingly and intentionally caus[ing] serious or debilitating physical
injury to a police dog, knowing said dog to be a police dog.” (Emphasis supplied.)
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The jury found Bynes guilty of two counts of armed robbery and one count of
“harming a police dog” without making any reference to the degree of injury suffered
by the dog. Bynes was convicted on these three counts and sentenced to two
concurrent life terms as to the armed robberies and five years, also concurrent, for
harming a police dog.
It is axiomatic that, as the trial court noted, the indictment and the pleas of not
guilty “form the issue which [a jury is] trying [and] will determine by [its] verdict.”
Gray v. State, 66 Ga. App. 50 (16 SE2d 916) (1941); see also Council of Superior
Court Judges, Suggested Pattern Jury Instructions (2007 ed.), § 1.10.20; Zilinmon v.
State, 234 Ga. 535, 537-538 (5) (216 SE2d 830) (1975). “[An] indictment which does
not recite language from the Code must allege every essential element of the crime
charged.” Smith v. Hardrick, 266 Ga. 54, 55 (1) (464 SE2d 198 (1995). Here, Bynes
was charged only with “knowingly and intentionally caus[ing] serious physical
injury” to the police dog in violation of OCGA § 16-11-107, without a specification
of subsection, and there is no evidence that the jury considered or determined whether
Bynes had knowingly caused “debilitating” injury to the dog under OCGA § 16-11-
107 (d), which is a felony and carries a maximum sentence of five years. Rather,
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Bynes was indicted for causing “serious” injury to the dog, which is defined as a
misdemeanor under OCGA § 16-11-107 (c).
“A sentence is void if the court imposes punishment that the law does not
allow.” Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991) (citation
omitted). “‘To allow the defendant to serve a sentence for a criminal conviction that
has been identified as illegal and void would not comport with fundamental fairness
and due process of law.’” von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446)
(2013), quoting Nazario v. State, 293 Ga. 480, 487 (2) (c) (746 SE2d 109) (2013). We
are empowered to correct a void sentence “‘even where it was not raised in the trial
court and is not enumerated as error on appeal.’” Hulett v. State, 296 Ga. 49, 54 (2)
(766 SE2d 1) (2014), quoting Nazario, 293 Ga. at 486 (2) (b). Because Bynes was
sentenced for a crime not charged in the indictment, and therefore not considered by
this jury, we vacate that portion of Bynes’s sentence imposed for causing debilitating
injury to a police dog under OCGA § 16-11-107 (d) and remand to the trial court for
resentencing for causing serious physical injury to a police dog under OCGA § 16-
11-107 (c). See Smith, 266 Ga. at 55-56 (3) (granting habeas relief to petitioner
convicted of aggravated assault when indictment did not charge petitioner with that
crime and was thus fatally defective). Compare Pitts v. State, 287 Ga. App. 540, 546-
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547 (3) (b) (652 SE2d 181) (2007) (where child molestation conviction merged into
a rape conviction based on the same act as a matter of fact, defendant could not be
separately sentenced for child molestation, such that no remand for resentencing on
that count was necessary).
3. Bynes argues that the trial court erred when it denied his request for
instructions on (a) the justified use of force in self-defense as to the charge of
harming the police dog and (b) theft by intimidation as a lesser included offense of
the armed robbery charge. We disagree.
(a) OCGA § 16-3-21 (b) (2) provides in relevant part that a person “is not
justified in using force” if he is “attempting to commit, committing, or fleeing after
the commission or attempted commission of a felony.” This Court has thus held that
when officers are “making a lawful arrest based on probable cause, they [have] the
right to use [that] force reasonably necessary to make the arrest,” and that under such
circumstances, the arrestee has “no right to resist the use of such reasonable force.”
Mayfield v. State, 276 Ga. App. 544, 546 (2) (623 SE2d 725) (2005), citing Long v.
State, 261 Ga. App. 478, 479 (1) (583 SE2d 158) (2003). It follows that a fleeing
defendant who uses force in resisting his own arrest for a felony he has just
committed is not entitled to an instruction on the justified use of force in self-defense.
Mayfield, 276 Ga. App. at 546 (2). The fact that Bynes may have had what he
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considers an “involuntary” reaction to the dog’s bite does not change this result. See
id. (defendant charged with felony obstruction after resisting arrest was not entitled
to a jury charge on self defense despite his claim that the pepper spray used by
officers made his violent reaction “disoriented or involuntary”).
(b) A defendant is entitled to a charge on theft by intimidation if a jury could
have found that a robbery “was committed without the use of an offensive weapon.”
Smith v. State, 252 Ga. App. 552, 553 (556 SE2d 826) (2001). “‘However, where the
state’s evidence establishes all of the elements of an offense and there is no evidence
raising the lesser offense, there is no error in failing to give a charge on the lesser
offense.’” Id., quoting Lightfoot v. State, 227 Ga. App. 605 (490 SE2d 177) (1997).
Here, Bynes did not testify in his own defense, and there was no evidence suggesting
that the robbery of either victim was accomplished only by intimidation rather than
the use of a gun. It follows that the trial court did not err when it denied Bynes’s
request for a charge on robbery by intimidation. Smith, 252 Ga. App. at 554 (when
“the only evidence before the court showed the completed offense of armed robbery,”
the court did not err in refusing a request to charge on robbery by intimidation and
theft by taking).
Judgment affirmed in part and vacated in part, and case remanded for
resentencing. Andrews, P. J., and Miller, P. J., concur.
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