THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and DOYLE, 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
August 11, 2017
In the Court of Appeals of Georgia
A17A0740. WILLIAMS v. THE STATE. DO-029 C
DOYLE, Judge.
After a jury trial, Harold Williams was convicted of four counts of aggravated
assault,1 five counts of possession of a firearm during the commission of a crime,2 one
count of kidnapping,3 two counts of armed robbery,4 one count of burglary,5 and two
counts of hijacking a motor vehicle.6 Williams unsuccessfully moved for a new trial,
1
OCGA § 16-5-21 (a) (1), (2).
2
OCGA § 16-11-106 (b) (1).
3
OCGA § 16-5-40 (a).
4
OCGA § 16-8-41 (a).
5
OCGA § 16-7-1 (b).
6
OCGA § 16-5-44.1 (b).
and he now appeals, arguing that (1) the trial court erred by admitting extrinsic act
evidence under OCGA § 24-4-404 (b), and (2) the evidence was insufficient to
support the verdict. For the reasons that follow, we affirm.
Viewed in the light most favorable to the verdict,7 the evidence shows that on
April 5, 2010, Darren Daniel was in front of his home in Clayton County, Georgia,
unloading groceries from his roommate’s Mitsubishi Galant when two men unknown
to him, Williams and Tecorey Thrasher, arrived in a Honda.8 Williams and Thrasher
demanded money from Daniel while holding him at gunpoint, but when Daniel had
none, they forced him to drive to an ATM at a nearby gas station. Daniel went inside
the store and borrowed a phone to dial 911, and the attackers soon drove off in the
Mitsubishi, which contained his house and car keys. Police arrived, took Daniel’s
statement, and drove him home, where he discovered that his Jeep had been stolen
along with other items in his home. The Mitsubushi was later discovered abandoned
and burned in a wooded lot. Officers found a Honda parked down the street from
7
See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979);
Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
8
Daniel died prior to the trial in this case. The State read into the record parts
of his sworn testimony from a prior proceeding in which he described the crimes at
issue.
2
where Daniel had seen Williams and Thrasher park before he was approached with
a gun. The Honda was later determined to be stolen from Kenya Clement one or two
days earlier.9 Daniel was able to identify both Williams and Thrasher in separate
photographic lineups.
Two days after the Daniel robbery, on April 7, 2010, in Newton County, Luis
Foncesca was approached by a group of four men at approximately 10:00 p.m. in
front of his father-in-law’s home.10 One man pointed a gun at Foncesca, his wife, and
his young daughter. Foncesca handed over the keys to his Mazda out of fear.
Foncesca testified that he had several baseball hats inside the car when it was stolen,
and he had noticed a black Jeep parked outside a nearby car dealership before he
arrived at his father-in-law’s home. Mikale Mitchell, an associate of Williams’s,
testified at trial that the Jeep had run out of gas, and he, Williams, and two other
friends (Jerricus Benton and Tecorey Thrasher) got out of the car and walked to a
neighborhood, where they saw Foncesca’s family outisde. Mitchell stated that they
were picked up by Williams in a vehicle later identified to be Foncesca’s. Newton
County police investigated the suspicious Jeep, finding that the tag was registered to
9
Clement did not identify Williams as the person who stole her car.
10
The present case does not include the Newton County offenses.
3
the Mitsubishi stolen earlier from Daniel’s roommate. The VIN of the Jeep showed
up as reported stolen in Clayton County.
Approximately two or three hours later, just after midnight on April 8, 2010,
Ruth Blanton was in her car in a CVS parking lot when two men approached her with
a gun and demanded her car keys. After she handed her keys to one man, the other
struck her in the head with a gun. The men then entered Blanton’s Nissan Sentra and
drove away. Thirty-five minutes later, a state trooper spotted Blanton’s car traveling
110 mph on I-20. The trooper pursued the car until it crashed. At the time of the
crash, Williams and Thrasher fled into the woods leaving Benton and Mitchell in the
back seat. Daniel’s keys along with Foncesca’s hats were found inside Blanton’s
stolen Sentra. No weapons were located inside of the vehicle.
Hours later, Devona Giles, Thrasher’s mother, called the police to inform them
that Thrasher was injured and had been threatened by Williams at gunpoint. Police
found Williams with Giles in the Newton County Medical Center parking lot, and
Williams was detained. Williams later admitted to being in the stolen vehicle that had
crashed during the police chase.
Williams was charged with multiple offenses stemming from these events in
an 18-count indictment in Clayton County. He was indicted, tried, and found guilty
4
in Newton County of the carjacking against Foncesca prior to the trial in this case.
Following a jury trial in Clayton County as to the crimes against Blanton and Daniel,
Williams was acquitted of one offense of theft, the trial court directed a verdict as to
two counts, and he was convicted of the remaining counts. Williams moved for a new
trial, which motion was denied, giving rise to this appeal.
1. Williams argues that evidence that he committed the Newton County
carjacking was improper extrinsic evidence under OCGA § 24-4-404 (b).
Specifically, he asserts that the evidence failed to identify him as the perpetrator of
the Newton County offenses and that the evidence was confusing and needlessly
cumulative. We disagree.
We review the admission of such evidence for a “clear abuse of discretion.”11
OCGA § 24-4-404 (b) provides that
[e]vidence of other crimes, wrongs, or acts shall not be admissible to
prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, including,
but not limited to, proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
11
Brooks v. State, 298 Ga. 722, 724 (2) (783 SE2d 895) (2016).
5
Nevertheless, the trial court ruled that the evidence of the Newton County
offense, i.e., stealing Foncesca’s Mazda, was intrinsic factual evidence “inextricably
intertwined” with the crimes charged in this case.
Under longstanding Georgia law, all the acts and circumstances
surrounding and constituting the res gestae are admissible, despite the
fact that they may reflect poorly on a defendant’s character. This rule
[was] carried forward to the new Evidence Code under the concept of
“intrinsic facts” evidence, as compared to evidence of “extrinsic acts”
which are generally inadmissible pursuant to OCGA § 24-4-404 (b).
Under relevant federal authority, evidence is intrinsic to the charged
offense, and thus does not fall within Rule 404 (b)’s ambit, if it (1) arose
out of the same transaction or series of transactions as the charged
offense; (2) is necessary to complete the story of the crime; or (3) is
inextricably intertwined with the evidence regarding the charged
offense. Moreover, evidence, not part of the crime charged but
pertaining to the chain of events explaining the context, motive, and
set-up of the crime, is properly admitted if linked in time and
circumstances with the charged crime, or forms an integral and natural
part of an account of the crime, or is necessary to complete the story of
the crime for the jury.12
12
(Citations and punctuation omitted; emphasis supplied.) Baughns v. State,
335 Ga. App. 600, 602-603 (1) (782 SE2d 494) (2016), citing United States v. Nowak,
370 Fed. Appx. 39, 41 (I) (11th Cir. 2010); United States v. Edouard, 485 F3d 1324,
1344 (II) (C) (11th Cir. 2007).
6
Here, the Newton County crime was the middle carjacking in a spree of three
carjackings over a three-day period, and it occurred a mere two or three hours before
the third and final carjacking. Thus, the Newton County evidence established the
complete time line of the consecutive carjackings, and items from the first two
carjackings were found in the vehicle stolen in the third hijacking. Further, Williams
was positively identified by the first victim, evidence from the third carjacking tied
him to the first and second, and he admitted being in the third stolen vehicle when it
crashed. This shows that the Newton County carjacking was inextricably intertwined
with the first and third carjackings.13
To the extent that Williams argues that the evidence was unduly prejudicial
under OCGA § 24-4-403,
in cases where [courts have] found other acts evidence inextricably
intertwined with the crimes charged, the [c]ourt has refused to find that
the evidence should nonetheless be excluded as unduly prejudicial. The
test [for undue prejudice] under [OCGA § 24-4-403] is whether the
other acts evidence was “dragged in by the heels” solely for prejudicial
impact. Because the other acts evidence was inextricably intertwined
13
See Baughns, 335 Ga. App. at 602-603, n. 7 (1) (collecting cases).
7
with the charged crimes, it was not excludable under [OCGA § 24-4-
403].14
Based on this record, we discern no abuse of discretion in the trial court’s admission
of the Newton County evidence as inextricably intertwined with the indicted
offenses.15
2. Williams argues that the evidence of his identity was insufficient to support
the jury’s finding of guilt. Specifically, he challenges the testimony by Mitchell, who
testified against Williams in exchange for leniency by the State for Mitchell’s
involvement in the Newton County carjacking. This argument is without merit.
When an appellate court reviews 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.
This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts.
Once a defendant has been found guilty of the crime charged, the
factfinder’s role as weigher of the evidence is preserved through a legal
14
(Citations and punctuation omitted.) United States v. McNair, 605 F3d 1152,
1206 (VIII) (11th Cir. 2010).
15
See Baughns, 335 Ga. App. at 603 (1).
8
conclusion that upon judicial review all of the evidence is to be
considered in the light most favorable to the prosecution.16
Here, there was evidence from the first carjacking victim, Daniel, identifying
Williams as a perpetrator. Also, as noted in Division 1, stolen items from the first two
carjackings were found in the vehicle recovered from the third, in which vehicle
Williams admitted riding when it crashed during a police chase. And the Jeep stolen
as part of the first carjacking was later connected via separate eyewitness testimony
to the second (Newton County) carjacking. Finally, “[t]he jury[, not this Court,] is to
determine the credibility of witnesses, so the truthfulness of those witnesses,
including that of possible accomplices, was for the jury to decide.”17 Likewise, “[i]t
was for the jury to decide . . . whether the accomplice’s testimony was sufficiently
corroborated” by the other evidence in the case, including Williams’s own statements
16
(Citation omitted; emphasis in original.) Jackson, 443 U. S. at 319 (III) (B).
17
(Punctuation omitted.) Handley v. State, 289 Ga. 786, 787 (1) (716 SE2d
176) (2011).
9
and the evidence linking him to the three carjackings.18 Therefore, based on the record
before us, the evidence authorized the jury’s finding of guilt.
Judgment affirmed. Ellington, P. J., and Andrews, J., concur.
18
Daniels v. State, 339 Ga. App. 837, 840 (795 SE2d 94) (2016). Williams
does not argue that the State’s case lacked sufficient corroboration.
10