Graham v. the State

FIFTH DIVISION
PHIPPS, P. J.,
DILLARD and PETERSON, JJ.

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

May 24, 2016

In the Court of Appeals of Georgia
A16A0297. GRAHAM v. THE STATE. PE-009C

PETERSON, Judge.

Marshall Martin Graham appeals his convictions for hijacking a motor vehicle

and aggravated assault. He argues that (1) the evidence was insufficient to support his

convictions; (2) the trial court erred by instructing the jury that the State did not have

to prove all of the acts listed in each count of the indictment; and (3) the trial court

erred by improperly commenting on the evidence during its instructions to the jury.

Because the evidence was sufficient to support Graham’s convictions and because the

jury instructions of which he complains were not erroneous, we affirm.1

1
Without requesting any sanction, Graham notes that the State’s brief was filed
three days late despite our Court having granted a one-week extension. While noting
that Graham filed an amended brief more than a month after filing his original brief,
we remind counsel of the importance of our deadlines and exercise our discretion to
consider the parties’ arguments. See Daniel v. State, 296 Ga. App. 513, 522 (7) (675
 1. Graham argues that the evidence was insufficient to authorize his

convictions, specifically contending that the eyewitness identification evidence was

insufficient because the victims gave contradictory descriptions based purely upon

race and clothing. We disagree.

When appellate courts review the sufficiency of the evidence, they do not

“re-weigh the evidence or resolve conflicts in witness testimony” but instead defer

“to the jury’s assessment of the weight and credibility of the evidence.” Greeson v.

State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). We determine

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 S. Ct. 2781,

61 LE2d 560) (1979) (citation omitted) (emphasis in original).

So viewed, one of the victims, Bobby, had escorted his mother, Rebecca, to her

car at his apartment complex when they were approached by two men, one of whom

asked to borrow a cell phone. The request denied, the two men walked off. Bobby

called 911 at around 2:01 a.m, reporting that a robbery might be imminent.

SE2d 472) (2009).

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 The men quickly returned, however, and Bobby ended his call. One of the men

pressed what appeared to be a handgun to Bobby’s temple, telling Bobby to empty

his pockets and hand over his wallet. Bobby handed over his wallet, and the gunman

nudged him toward the curb of the parking lot. Meanwhile, the other man, who was

on the passenger’s side of Rebecca’s car, entered the car through the back door and

began rummaging around the car and Rebecca’s pockets. One of the men ordered

Rebecca out of the car and the two men drove away in her vehicle. The victims

testified that they did not know which man was in which seat when the car departed

but said they had not seen the men switching sides of the car.

Around 2:11 a.m., about 10 minutes after Bobby’s initial 911 call, a deputy

stopped Rebecca’s automobile after a brief chase. The driver of the car pulled into a

gas station parking lot, stopped, and ran away without ever being apprehended. The

deputy found Graham sitting in the passenger seat, with a dark shirt tied around his

neck like a bandana. A few small items that Rebecca claimed were hers — a lighter,

lip balm, and a broken knife — were in Graham’s pants. Rebecca’s purse was found

on the floor of the vehicle. Rebecca also claimed that between nine and thirteen

dollars had been taken from her purse before it was returned to her by police, and

thirteen dollars were found in Graham’s pants. Bobby’s wallet was not found in the

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car or on Graham. No gun was found on Graham, although a gun was found resting

on the console of the car.2

At trial, both Bobby and Rebecca provided descriptions of the perpetrators or

what they were wearing, although only Rebecca positively identified Graham as one

of the hijackers. In his trial testimony, Bobby said the person who approached on the

driver’s side and put a gun to his head was wearing all black. Bobby said he could see

only the gunman’s eyes, as though his mouth were covered with some sort of red,

black or otherwise dark mask. The perpetrator who approached the passenger’s side

was wearing red clothing and a red bandana with white polka dots as a mask, Bobby

testified. Bobby was not asked to identify Graham at trial.

Rebecca testified that the man who put a gun to her son’s head had dark skin

and wore all black, including something over his face. She said the other man might

have been wearing something red but she did not recall him wearing a mask. In her

trial testimony, Rebecca identified Graham as the man who had stood at her driver’s

side door, holding a gun to her son’s head, not the man who walked up on the

passenger’s side. She explained that she was able to make the identification based on

2
The trial prosecutor stated during the trial that the gun recovered from the car
was a pellet gun.

4
his skin coloring and his eyes, which she described as “sad eyes, down at the

corners.” Defense counsel attempted to show during cross-examination that the

descriptions provided by the victims at trial were inconsistent with those previously

provided to police.

Graham did not testify at trial but told police that he did not participate in the

robbery and instead was in the car to catch a ride from the Fieldstone housing

complex. A deputy testified that at some point subsequent to Graham’s arrest he

drove from Bobby’s apartment complex to the location of the stop via the highway,

and the trip took 11 minutes traveling at 80 mph, the speed Rebecca’s car was

traveling during the pursuit. Although it is not entirely clear from the cold record,

witnesses gave testimony that prosecutors characterize as demonstrating that

Fieldstone, where Graham said he was picked up, is in the opposite direction from

that in which the vehicle was seen traveling when it left Bobby’s apartment complex.

The jury acquitted Graham of Counts 1 and 2, which charged Graham with the

armed robbery of Rebecca and Bobby, respectively, and Count 5, which charged

Graham with the aggravated assault of Bobby. The jury convicted Graham on Count

3, which charged him with hijacking a motor vehicle, and Count 4, with charged him

with the aggravated assault of Rebecca.

5
 Graham argues that the victims’ testimony was suspect because eyewitness

identifications, particularly cross-racial ones,3 are often wrong. He also argues that

their testimony was suspect because it was largely limited to race and clothing and

because the victims’ encounter with the perpetrators was brief, stressful, and in a dark

location. However, the reliability of a witness’ identification goes to the credibility

and weight of the witness’ testimony, a matter that is within the province of the jury,

not this Court. Jones v. State, 329 Ga. App. 478, 479 (1) (765 SE2d 657) (2014)

(rejecting sufficiency argument that identification of defendant was suspect given that

victim saw only perpetrator’s eyes during robbery). Graham cites Rutland v. State,

129 Ga. App. 313 (199 SE2d 595) (1973), for the proposition that an identification

largely based on race and clothing is insufficient to sustain a conviction. However,

in our opinion in that case there was no indication that the victim, whose face was

covered during the crime, was able to identify the defendant. See id. at 313. The

evidence deemed insufficient there was that the perpetrator was black and barefoot,

that other witnesses had seen the defendant walking barefoot in the vicinity of the

crime, that the victim had attempted to scratch the perpetrator, and that scratches were

noted on the defendant’s arm. See id. at 313-14. In contrast, Rebecca positively

3
Graham does not point to record evidence of the victims’ race.

6
identified Graham as the gunman, and her testimony was largely corroborated by

additional evidence — particularly Graham being found in her stolen vehicle shortly

after the 911 call and his possession of items that she claimed were stolen from her.

Graham also argues that descriptions given by the victims at trial contradicted

one another, as well as Bobby’s pretrial descriptions. However, any such

inconsistencies go to the weight and credibility of the in-court identifications, and it

is for the jury to assess the witness’ credibility and resolve any conflicts in the

evidence. McCrary v. State, 310 Ga. App. 215, 216 (1) (712 SE2d 622) (2011)

(inconsistencies among witnesses’ testimony); Sherman v. State, 225 Ga. App. 869,

872 (2) (485 SE2d 557) (1997) (inconsistencies between pre-trial and in-trial

identifications).

Graham additionally argues that the jury’s decision to convict him on Counts

3 and 4 and acquit on Counts 1, 2, and 5 was illogical given that Rebecca identified

him as the man who pointed a gun at Bobby, but Rebecca is the named victim in

Counts 3 and 4, and Bobby is the named victim in Counts 1, 2, and 5.4 Graham

4
In fact, Rebecca is the victim named in Count 1 of the indictment. Moreover,
both Counts 3 and 4 involved the hijacking or attempted hijacking of Rebecca’s
vehicle. Although both Counts 3 and 4 made reference to a firearm, evidence the
defendant pointed a gun directly at Rebecca is not necessary to support convictions
on those counts. See OCGA § 16-5-44.1(b) (“A person commits the offense of

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acknowledges that our Supreme Court has abolished the rule against inconsistent

verdicts, see Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), but

suggests in a footnote it might be time to reinstate that rule. However, “this Court has

no authority to overrule or modify a decision made by the Supreme Court of

Georgia[.]” Pak v. Ga. Dep’t of Behavioral Health & Developmental Disabilities, 317

Ga. App. 486, 488 (731 SE2d 384) (2012).

2. Graham next argues that the trial court erred by instructing the jury that the

State did not have to prove all of the acts listed in each count of the indictment. We

disagree.

Counts 3 and 4, the two counts on which Graham was convicted, each referred

to both a “firearm and a replica of a firearm.” Count 3, the hijacking charge, accused

Graham of obtaining a vehicle “while in a possession of a firearm and a replica of a

firearm,” and Count 4, one of the aggravated assault charges, alleged that he “did

brandish a firearm and a replica of a firearm.” The State requested that the trial court

hijacking a motor vehicle when such person while in possession of a firearm or
weapon obtains a motor vehicle from the person or presence of another by force and
violence or intimidation or attempts or conspires to do so”) (emphasis added); OCGA
§ 16-5-20 to -21 (aggravated assault may be committed by use of a deadly weapon to
place someone “in reasonable apprehension of immediately receiving a violent
injury”).

8
instruct the jury that, in order for the jury to find the defendant guilty, the State need

prove only that the defendant committed at least one act that satisfied each element

of the crime charged. The trial court gave an instruction that was similar, but not

identical, to that requested by the State:

I charge you that to find the defendant guilty of the crime charged, the
State need only prove that the defendant committed at least one act
which satisfies each and every element of the crime charged. Merely
because two or more separate acts are listed in the charge does not
require the State to prove all of the listed acts to find the defendant
guilty of the crime charged.

In addition the presence of the word, and, in the description of actions
taken by the accused is not required for the State to prove each act listed.

After the trial court sent the jury out to deliberate, defense counsel said he had no

objections to the jury instructions.

Because the defendant failed to lodge any specific objection to the instruction

he complains of now, we review the instruction to determine whether it “constitutes

plain error which affects substantial rights of the parties.” OCGA § 17-8-58(b). Under

that standard, the court must consider “whether the instruction was erroneous,

whether it was obviously so, and whether it likely affected the outcome of the

9
proceedings.” State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011) (citation

and internal punctuation omitted). If it answers all three of these questions in the

affirmative, the appellate court may reverse “if the error seriously affects the fairness,

integrity, or public reputation of the proceedings below.” Id. (citation omitted)

Here, the instruction in question does not constitute error at all. Although the

instruction was not perfectly clear, the essence of the instruction was a correct

statement of the law: “If a crime may be committed in more than one way, it is

sufficient for the State to show that it was committed in any one of the separate ways

listed in the indictment, even if the indictment uses the conjunctive rather than

disjunctive form.” Gipson v. State, 332 Ga. App. 309, 317 (5) (772 SE2d 402) (2015)

(citation and internal punctuation omitted). For that reason, in Gipson, we ruled that

it was not error to instruct the jury on the elements of aggravated battery by using the

disjunctive language of the statute,5 even though the indictment charged the crime in

the conjunctive. Id. Similarly, here it did not shift the burden of proof to the defense

5
“A person commits the offense of aggravated battery when he or she
maliciously causes bodily harm to another by depriving him or her of a member of his
or her body, by rendering a member of his or her body useless, or by seriously
disfiguring his or her body or a member thereof.” OCGA § 16-5-24(a).

10
to instruct the jury that the prosecution need prove only the use of a firearm or a

replica.

3. Graham also argues that the trial court improperly commented on the

evidence when it told jurors, “you now have a pretty good idea where things

happened.” We disagree.

Near the end of the trial court’s charge to the jury, it instructed:

Now I want to caution you about one other thing. You now have a pretty
good idea about where things happened, all that’s — you know, the
distances, times that may be important in this case.

This is not a free lance committee work where somebody needs to go out
and do anymore evaluation or investigation. Don’t get on Google, don’t
get on Maps, don’t go check out whose address is what. Stay away from
all that stuff as it relates to this case.

Again, the defense did not object to the charge.

Graham argues that the trial court’s instructions in this regard amounted to an

impermissible comment on the evidence requiring a new trial under OCGA § 17-8-57.

He argues that the trial court’s statement conveyed to jurors that the court thought that

venue and a number of essential elements of the crime had been proven. Graham

11
contends that the trial court’s statement “served to highlight” the State’s argument

that his story that he was just catching a ride was false.

The version of OCGA § 17-8-57 in effect at the time of Graham’s trial6

provided:

It is error for any judge in any criminal case, during its progress or in his
charge to the jury, to express or intimate his opinion as to what has or
has not been proved or as to the guilt of the accused. Should any judge
violate this Code section, the violation shall be held by the Supreme
Court or Court of Appeals to be error and the decision in the case
reversed, and a new trial granted in the court below with such directions
as the Supreme Court or Court of Appeals may lawfully give.

As underscored by our Supreme Court in Rouse v. State, 296 Ga. 213, 214-15 (2)

(765 SE2d 879) (2014), any violation of that version of OCGA § 17-8-57 required a

6
Graham was tried in November 2014. The Legislature amended the statute in
2015. Ga. L. 2015, p. 1050. The new statute “limits the scope of appellate review in
cases in which no timely objection was made at trial.” Pyatt v. State, No. S15A1734,
2016 Ga. LEXIS 249, 13-14 n.9 (3) (Ga. March 25, 2016). Our Supreme Court
recently suggested that this limit on appellate review might apply even to cases that
were tried before the effective date of the new statute. See id. at 14 n.9 (3). Like that
Court, we need not decide whether the 2015 amendment applies to this case because
we find no reversible error even under the former version of the statute. See id. at 15
n.9 (3).

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new trial regardless of whether there had been any showing of actual prejudice to the

defendant.

Graham argues that the trial court’s instruction was akin to the comments found

to merit reversal in Rouse, in which the trial court during preliminary instructions told

members of the venire that they would “be hearing about a case, which is a murder

case, that happened in Muscogee County[.]” Rouse, 296 Ga. at 215 (2). However, the

trial court’s instructions here are different because they were not “an explicit

comment by a trial judge indicating the court’s opinion that a critical element that

must be proved by the State was not in dispute.” Id. at 216 (2). The comments here

were made in the context of telling jurors not to do their own investigation. They are

more akin to the trial court’s inartful comments in Atkins v. State, 253 Ga. App. 169,

170-71 (2) (558 SE2d 755) (2002), which included an admonishment that prospective

jurors “listen carefully to the facts as contained in the indictment.” In an opinion that

was distinguished, not overruled, in Rouse, this court found that those comments did

not violate OCGA § 17-8-57, particularly in the light of the trial court’s otherwise

accurate instructions on the State’s burden of proof and other related matters. See

Rouse, 296 Ga. at 216-17 (2); Atkins, 253 Ga. App. at 170-71 (2). Similarly, here, the

trial court instructed the jury that the State bore the burden to prove each essential

13
element of the charged crimes, as well as venue, beyond a reasonable doubt. The trial

court also instructed jurors that it had not intended by any of rulings or comments to

express any opinion on the evidence or guilt of the accused. The trial court did not err

in making the complained-of comment here.

Judgment affirmed. Phipps, P. J., and Dillard, J., concur.

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