SECOND DIVISION
MILLER, P. J.,
RICKMAN and REESE, 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
September 23, 2019
In the Court of Appeals of Georgia
A19A1091. POWELL v. THE STATE.
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.
1
See OCGA § 16-8-41 (a).
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.
2
See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d
560) (1979); Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).
2
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
3
443 U. S. at 319 (III) (B).
3
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
4
Rankin, 278 Ga. at 704.
5
Donnell v. State, 285 Ga. App. 135 (1) (645 SE2d 614) (2007).
6
232 Ga. 393 (207 SE2d 30) (1974).
4
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
7
OCGA § 16-8-41 (a).
8
Hicks, 232 Ga. at 403; cf. Weldon v. State, 279 Ga. 185, 186 (611 SE2d 36)
(2005) (armed robbery established where the defendant threatened the victim with a
firearm, carried by a co-defendant, during a robbery); Francis v. State, 266 Ga. 69,
70 (1) (463 SE2d 859) (1995) (theft occurred where evidence showed that the theft
was completed after the defendant employed force against the victim).
9
See Banks v. State, 269 Ga. App. 653, 654 (1) (605 SE2d 47) (2004) (victim’s
in-court identification of the defendant as the gunman was sufficient, under Jackson
v. Virginia, to authorize the jury’s guilty verdict); Lane v. State, 255 Ga. App. 274,
276 (564 SE2d 857) (2002)
5
testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before
it.”10
As explained fully in Division 2, supra, 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.
10
Patterson v. State, 346 Ga. App. 530, 534 (2) (816 SE2d 461) (2018)
(punctuation and footnote omitted).
11
See Mathis v. State, 328 Ga. App. 292, 299 (2) (e) (761 SE2d 836) (2014)
(affirmed armed robbery conviction because the evidence was sufficient for a jury to
find beyond a reasonable doubt that “the perpetrators used offensive weapons either
before or contemporaneous with the taking of [the victim’s] property[.]”)
(punctuation and footnote omitted).
12
See Lebis v. State, 302 Ga. 750, 759 (II) (B) (808 SE2d 724) (2017) (A fatal
variance exists when: “(1) the allegations fail to definitely inform the accused as to
the charges against him so as to enable him to present his defense and not be taken
by surprise, and (2) the allegations are not adequate to protect the accused against
another prosecution for the same offense.”) (citation omitted).
6
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
13
Felder v. State, 270 Ga. 641, 643 (2) (514 SE2d 416) (1999) (defendant
properly indicted for armed robbery since “the victim’s person includes the entire area
within his immediate presence[ ]”).
7
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,
so 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
14
See Felder, 270 Ga. at 643 (2) (trial court correctly denied the defendant’s
motion for a directed verdict of acquittal on the armed robbery charge because the
evidence at trial was sufficient to show that the property was taken from the
immediate presence of the victim, as alleged).
15
See Lebis, 302 Ga. at 759 (II) (B).
8
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
16
The property custodian for the Department testified that he was unable to
locate the video.
9
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 because it was his sole defense.
OCGA § 17-8-58 states:
(a) Any party who objects to any portion of the charge to the jury or the
failure to charge the jury shall inform the court of the specific objection
and the grounds for such objection before the jury retires to deliberate.
Such objections shall be done outside of the jury’s hearing and presence.
(b) Failure to object in accordance with subsection (a) of this Code
section shall preclude appellate review of such portion of the jury
charge, unless such portion of the jury charge constitutes plain error
which affects substantial rights of the parties. Such plain error may be
considered on appeal even if it was not brought to the court’s attention
as provided in subsection (a) of this Code section.
17
Gaines v. State, 339 Ga. App. 527, 529 (2) (792 SE2d 466) (2016)
(punctuation and footnote omitted).
18
See id. at 529 (2); see also Samuels v. State, 335 Ga. App. 819, 825 (2) (783
SE2d 344) (2016).
10
To demonstrate plain error, the Appellant must show that “the failure to give
the instruction was erroneous, the error was obvious, the lack of the instruction likely
affected the outcome of the proceedings, and the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”19
Prior to the charge conference, the Appellant submitted written, proposed jury
charges, including a request to charge the jury on the offense of robbery by
intimidation. During the charge conference, defense counsel orally requested “a lesser
included offense charge [of robbery.]” The trial court ruled, citing to Hill v. State20
as authority, that it was not appropriate to give the robbery by intimidation jury
instruction because the identity of the perpetrator was at issue and “if [the jury does
not] believe a gun was involved, and they are instructed that they have to find [that]
each and every element occurred, then they don’t have a choice. They have to find
[the Appellant] not guilty.”21 The trial court also found that there was no evidence to
19
Styles v. State, 329 Ga. App. 143, 149 (2) (764 SE2d 166) (2014)
(punctuation and footnote omitted).
20
228 Ga. App. 362 (492 SE2d 5) (1997).
21
See id. at 363 (1) (“Although robbery by intimidation is a lesser included
offense of armed robbery, it is not error in an armed robbery case to fail to charge on
robbery by intimidation where there is evidence of robbery by use of an offensive
weapon, but no evidence of robbery by intimidation.”) (citation omitted).
11
support a robbery by intimidation jury charge. Defense counsel did not object either
to the trial court’s ruling or to the jury charge as given.
The Appellant has failed to show plain error. As explained in Division 1, supra,
the State presented sufficient evidence to support an armed robbery conviction. Both
victims identified the Appellant as the robber that pointed a gun at B. S., and E. M.
testified that the Appellant pointed a gun at B. S. and then took the money. Further,
the Appellant failed to argue during the charge conference that robbery as a lesser
included was his sole defense.22 Even if robbery was the Appellant’s sole defense, the
trial court did not err in failing to give the robbery instruction because the Appellant
22
See Jackson v. State, 252 Ga. App. 16, 16-17 (2) (555 SE2d 240) (2001)
(“Issues presented for the first time on appeal furnish nothing for us to review, for this
is a court for correction of errors of law committed by the trial court where proper
exception is taken, because one may not abandon an issue in the trial court and on
appeal raise questions or issues neither raised nor ruled on by the trial court.”)
(citation omitted).
12
denied that he was the robber.23 Thus, “the trial court’s failure to charge on robbery
. . . was not error because the evidence did not demand a charge on that offense.”24
5. The Appellant argues that the trial court erred by commenting on the
evidence in violation of OCGA § 17-8-57. Specifically, the Appellant contends that
the trial court’s comments “on the facts presented to the jury[ ]” constituted harmful
error. This argument is without merit.
Under OCGA § 17-8-57 (a) (1), “[i]t is error for any judge, during any phase
of any criminal case, to express or intimate to the jury the judge’s opinion as to
whether a fact at issue has or has not been proved or as to the guilt of the accused.”25
The record shows that the comments referenced in the Appellant’s brief that
were made by the trial court judge during the charge conference, outside the presence
23
See Palmer v. State, 330 Ga. App. 679, 681 (1) (769 SE2d 107) (2015)
(affirmed the trial court did not err in failing to give a jury instruction on the
defendant’s sole defense of justification because the defendant denied committing the
crime).
24
Styles, 329 Ga. App. at 150 (2) (a) (punctuation and footnote omitted;
emphasis in original); see Gunter v. State, 316 Ga. App. 485, 487 (2) (729 SE2d 597)
(2012) (“[A]bsent a written request to charge, the failure to instruct the jury on a
lesser included offense is not error.”) (citations and punctuation omitted; emphasis
supplied).
25
(Emphasis supplied.)
13
of the jury. Thus, the Appellant’s argument that the trial court violated OCGA § 17-8-
57 is belied by the record.
Based on the foregoing, the trial court did not err in denying the Appellant’s
motion for new trial.
Judgment affirmed. Miller, P. J., and Rickman, J., concur.
14